GRAND CHAMBER
CASE OF AVOTIŅŠ v. LATVIA
(Application no. 17502/07)
JUDGMENT
STRASBOURG
23 May 2016
This judgment is final but it may be subject to editorial revision.
AVOTIŅŠ v. LATVIA JUDGMENT 1
In the case of Avotiņš v. Latvia,
The European Court of Human Rights, sitting as a Grand Chamber
composed of:
András Sajó, President,
Işıl Karakaş,
Josep Casadevall,
Elisabeth Steiner,
Ján Šikuta,
Nona Tsotsoria,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal,
Faris Vehabović,
Ksenija Turković,
Egidijus Kūris,
Robert Spano,
Iulia Antoanella Motoc,
Jon Fridrik Kjølbro, judges,
Jautrīte Briede, ad hoc judge
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 8 April 2015 and on 23 March 2016,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 17502/07) lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) against the Republic
of Cyprus and the Republic of Latvia by a Latvian national, Mr Pēteris
Avotiņš (“the applicant”), on 20 February 2007.
2. The applicant was initially represented by Mr J. Eglītis, a lawyer
practising in Riga. In the Grand Chamber proceedings he was represented
by Mr L. Liepa, a lawyer also practising in Riga. The Latvian Government
(“the respondent Government”) were represented by their former Agent,
Ms I. Reine, and subsequently by their current Agent, Ms K. Līce.
3. The application was originally lodged against Cyprus and Latvia. The
applicant alleged, in particular, that a Cypriot court had ordered him to pay
a contractual debt without duly summoning him to appear or securing the
exercise of his defence rights. He further complained of the fact that the
Latvian courts had ordered the enforcement of the Cypriot court judgment
2 AVOTIŅŠ v. LATVIA JUDGMENT
in Latvia. He alleged a violation of his right to a fair hearing guaranteed by
Article 6 § 1 of the Convention.
4. The application was initially assigned to the Third Section of the
Court (Rule 52 § 1 of the Rules of Court). In a partial decision of 30 March
2010 a Chamber of that Section declared the application inadmissible as
being out of time in so far as it concerned Cyprus (for failure to comply
with the six-month time-limit laid down in Article 35 § 1 of the
Convention). With regard to the complaints against Latvia, the Chamber
further decided to give notice to the Latvian Government of the complaint
under Article 6 § 1 of the Convention and to declare the remainder of the
application inadmissible.
5. On 1 February 2011 the composition of the Court’s Sections was
changed and the application was assigned to the Fourth Section
(Rules 25 § 1 and 52 § 1).
6. On 25 February 2014 a Chamber of that Section composed of
Päivi Hirvelä, President, Ineta Ziemele, George Nicolaou, Ledi Bianku,
Zdravka Kalaydjieva, Vincent A. De Gaetano and Krzysztof Wojtyczek,
judges, and Françoise Elens-Passos, Section Registrar, delivered a judgment
in which it found by a majority that there had been no violation of
Article 6 § 1 of the Convention. The joint dissenting opinion of Judges
Ziemele, Bianku and De Gaetano was annexed to the judgment.
7. On 23 May 2014 the applicant requested the referral of the case to the
Grand Chamber under Article 43 of the Convention and Rule 73. On
8 September 2014 the panel of the Grand Chamber granted the request.
8. The composition of the Grand Chamber was subsequently determined
according to the provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24. As the seat of the judge elected in respect of Latvia had become
vacant in the meantime owing to the departure of Judge Ineta Ziemele, the
President of the Court appointed Ms Jautrīte Briede to sit as an ad hoc judge
(Article 26 § 4 of the Convention and Rule 29 § 1).
9. The respondent Government filed written observations on the merits,
while the applicant referred to the arguments submitted in his request for
referral to the Grand Chamber. Observations were also received from the
Estonian Government, the European Commission and the Centre for Advice
on Individual Rights in Europe (the AIRE Centre), all of which had been
given leave by the President to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 3). The European
Commission was also given leave to participate in the hearing.
10. Furthermore, in the interests of the proper administration of justice,
the President of the Court decided to invite the Cypriot Government to
intervene in the case and to submit explanations and observations on
Cypriot law as relevant to the case (Article 36 § 2 of the Convention and
Rule 44 § 3). The Cypriot Government accepted the invitation and
submitted their observations on 4 February 2015.
AVOTIŅŠ v. LATVIA JUDGMENT 3
11. A hearing was held in public in the Human Rights Building,
Strasbourg, on 8 April 2015 (Rule 59 § 3).
There appeared before the Court:
(a) for the applicant
Mr L. LIEPA, Counsel,
Mr M. ŠĶIŅĶIS,
Mr M. PĒTERSONS, Advisers,
Mr P. AVOTIŅŠ, Applicant;
(b) for the respondent Government
Ms K. LĪCE, Agent,
Ms S. KAULIŅA, Counsel,
Ms A. ZIKMANE,
Ms D. PALČEVSKA, Advisers;
(c) for the European Commission
Mr H. KRÄMER, Counsel.
The Court heard addresses by Mr Liepa, Ms Līce and Mr Krämer and
their replies to questions asked by the judges.
12. Judges Elisabeth Steiner, Nona Tsotsoria and Paul Lemmens,
substitute judges, subsequently replaced President Dean Spielmann and
Judges Mark Villiger and Isabelle Berro, who had left the Court owing to
the expiry of their terms of office and were unable to take part in the further
consideration of the case (Rule 24 §§ 3 and 4 of the Rules of Court). Judge
András Sajó, Vice-President of the Court, then took over the presidency of
the Grand Chamber in the present case (Rule 10).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
13. The applicant was born in 1954 and lives in Garkalne (Riga district).
At the time of the events which are the subject of the present application he
was an investment consultant.
A. The proceedings in the Limassol District Court
14. On 4 May 1999 the applicant and F.H. Ltd., a commercial company
incorporated under Cypriot law, signed an acknowledgment of debt deed
before a notary. Under the terms of the deed the applicant declared that he
4 AVOTIŅŠ v. LATVIA JUDGMENT
had borrowed 100,000 United States dollars (USD) from F.H. Ltd. and
undertook to repay that sum with interest by 30 June 1999. The deed also
contained choice of law and jurisdiction clauses according to which it was
governed “in all respects” by Cypriot law and the Cypriot courts had
non-exclusive jurisdiction to hear any disputes arising out of it. The
applicant’s address was given as G. Street in Riga and was indicated as
follows:
“[FOR] GOOD AND VALUABLE CONSIDERATION, I, PĒTERIS AVOTIŅŠ,
of [no.], G. [street], 3rd
floor, Riga, Latvia, [postcode] LV-..., (‘the Borrower’) ...”
15. In 2003 F.H. Ltd. brought proceedings against the applicant in the
Limassol District Court (Επαρχιακό Δικαστήριο Λεμεσού, Cyprus), alleging
that he had not repaid the above-mentioned debt and requesting that he be
ordered to pay the principal debt together with interest. In the Strasbourg
proceedings the applicant submitted that he had in fact already repaid the
debt before the proceedings were instituted in the Cypriot court, not by
paying the sum of money in question to F.H. Ltd. but by other means linked
to the capital of F.H. Ltd.’s parent company. However, he acknowledged
that there was no documentary evidence of this. The respondent
Government contested the applicant’s submission.
16. In an order dated 27 June 2003 the District Court authorised the
“sealing and filing of the writ of summons”. On 24 July 2003 a “specially
endorsed writ” was drawn up, describing the facts of the case in detail. It
gave the applicant’s address as G. Street in Riga, the address indicated on
the acknowledgment of debt deed.
17. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex
parte application to the same District Court on 11 September 2003 seeking
a fresh order enabling a summons to be served on the applicant outside the
country and requiring him to appear within thirty days from the date of
issuing of the summons. The claimant company’s lawyer produced an
affidavit declaring that the defendant was habitually resident at an address
in G. Street in Riga and could actually receive judicial documents at that
address. The applicant, for his part, contended that it would have been
physically impossible for him to receive the summons at the address in
question, which was simply the address at which he had signed the loan
contract and the acknowledgment of debt deed in 1999 and was not his
home or business premises.
18. On 7 October 2003 the Limassol District Court ordered that notice of
the proceedings be served on the applicant at the address provided by the
claimant company. The applicant was summoned to appear or to come
forward within thirty days of receiving the summons. If he did not do so the
court would make no further attempt to contact him and would instead post
all future announcements concerning the case on the court noticeboard.
19. An affidavit produced by an employee of the firm of lawyers
representing F.H. Ltd. showed that, in accordance with the court order, the
AVOTIŅŠ v. LATVIA JUDGMENT 5
summons had been sent by recorded delivery to the address in G. Street in
Riga on 16 November 2003. However, the copy of the summons furnished
by the Latvian Government indicated that it had been drawn up on
17 November 2003. The slip produced by the Cypriot postal service stated
that the summons had been sent on 18 November 2003 to the address in
G. Street, and had been delivered and signed for on 27 November 2003.
However, the signature on the slip did not appear to correspond to the
applicant’s name. The applicant claimed never to have received the
summons.
20. As the applicant did not appear, the Limassol District Court ruled in
his absence on 24 May 2004. It ordered him to pay the claimant
USD 100,000 or the equivalent in Cypriot pounds (CYP), plus interest at an
annual rate of 10% of the aforementioned amount from 30 June 1999 until
payment of the debt. The applicant was also ordered to pay costs and
expenses in a gross amount of CYP 699.50, plus interest at an annual rate of
8%. According to the judgment, the final version of which was drawn up on
3 June 2004, the applicant had been duly informed of the hearing but had
not attended. The judgment did not state whether the decision was final or
indicate possible judicial remedies.
B. The recognition and enforcement proceedings in the Latvian
courts
21. On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale
District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa, Latvia) seeking
recognition and enforcement of the judgment of 24 May 2004. In its request
the company also sought to have a temporary precautionary measure
applied. It stated that the applicant was the owner of real property in
Garkalne (Riga district) which according to the land register was already
mortgaged to a bank. Accordingly, fearing that the applicant might seek to
evade enforcement of the judgment, it asked the District Court to place a
charge on the property in question and record the charge in the land register.
Lastly, it requested that the applicant be ordered to pay the costs. In its
request the company gave as the applicant’s place of residence an address in
Č. Street in Riga which differed from the address previously notified to the
Cypriot court.
22. On 28 April 2005 the Latgale District Court adjourned examination
of F.H. Ltd.’s request, informing the company that the request contained a
number of defects which it had one month to correct. In particular, F.H. Ltd.
had not explained why it had given an address in Č. Street when the
applicant was supposedly resident in G. Street.
23. On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it
explained, among other points, that according to the information contained
in the register of residents (Iedzīvotāju reģistrs), the address in Č. Street was
6 AVOTIŅŠ v. LATVIA JUDGMENT
the applicant’s officially declared home address. As to the address in
G. Street, the company’s representatives had assumed it to be the
applicant’s actual residence. In that connection the Latvian Government
provided the Court with a copy of a letter from the authority responsible for
the register of residents according to which, prior to 19 June 2006, the
applicant’s officially declared address had been in Č Street.
24. In an order of 31 May 2005 the Latgale District Court ruled that the
corrigendum submitted by F.H. Ltd. was insufficient to remedy all the
defects in its request. The court therefore declined to examine the request
and sent it back to the company. The latter lodged an appeal with the Riga
Regional Court (Rīgas apgabaltiesa), which on 23 January 2006 set aside
the order of 31 May 2005 and remitted the case to the District Court in order
for the latter to examine the request for recognition and enforcement as
rectified by the corrigendum of 26 May 2005.
25. In an order of 27 February 2006 issued without the parties being
present, the Latgale District Court granted F.H. Ltd.’s request in full. It
ordered the recognition and enforcement of the Limassol District Court’s
judgment of 24 May 2004 and the entry in the Garkalne municipal land
register of a charge on the property owned by the applicant in that
municipality. The applicant was also ordered to pay the costs.
26. According to the applicant, it was not until 15 June 2006 that he
learned, from the bailiff responsible for enforcement of the Cypriot
judgment, of the existence of that judgment and of the Latgale District
Court order for its enforcement. On the following day (16 June 2006) he
went to the District Court, where he acquainted himself with the judgment
and the order. The respondent Government did not dispute these facts.
27. The applicant did not attempt to appeal against the Cypriot judgment
in the Cypriot courts. However, he lodged an interlocutory appeal (blakus
sūdzība) against the order of 27 February 2006 with the Riga Regional
Court, while asking the Latgale District Court to extend the time allowed for
lodging the appeal. Arguing that there was nothing in the case file to
confirm that he had been given notice of the hearing of 27 February 2006 or
of the order issued following the hearing, he submitted that the thirty-day
period laid down by the Civil Procedure Law should start running on
16 June 2006, the date on which he had taken cognisance of the order in
question.
28. In an order of 13 July 2006 the Latgale District Court granted the
applicant’s request and extended the time-limit for lodging an appeal. It
noted, inter alia, as follows:
“... It is clear from the order of 27 February 2006 that the issue of recognition and
enforcement of the foreign judgment was determined in the absence of the parties, on
the basis of the documents furnished by the claimant, [F.H. Ltd.]. The order further
states that the defendant may appeal against it within thirty days from the date of
receipt of the copy [of that order], in accordance with section 641(2) of the Civil
Procedure Law.
AVOTIŅŠ v. LATVIA JUDGMENT 7
The court considers the arguments advanced by the applicant, P. Avotiņš, to be
well-founded, to the effect that he did not receive the order ... of 27 February 2006
until 16 June 2006, this being attested to by the reference in the list of consultations
[appended to the case file] and by the fact that the order, served [on the applicant] by
the court, was returned on 10 April 2006 ... It is apparent from the documents
appended to the appeal that the applicant has not lived at the declared address in [Č.]
Street since 1 May 2004; this confirms ... the statement made by his representative at
the hearing, according to which the applicant no longer lives at the above-mentioned
address.
Accordingly, the thirty-day period should ... run from the date on which the
applicant received the order in question ...
Further, the court does not share the view of the representative of [F.H. Ltd.] that the
applicant himself is responsible for his failure to receive the correspondence because
he did not declare his change of address promptly, and that the time allowed [for
lodging an appeal] should not therefore be extended. The fact that the applicant did
not take the necessary legal steps concerning registration of residence is not sufficient
to justify a refusal by the court to allow him to exercise the fundamental rights
guaranteed by the State as regards access to the courts and judicial protection,
including the right to appeal against a decision, with the consequences this is likely to
entail. ...”
29. In his grounds of appeal before the Riga Regional Court the
applicant contended that the recognition and enforcement of the Cypriot
judgment in Latvia breached Council Regulation (EC) No 44/2001 of
22 December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (“the Brussels I Regulation”) and
several provisions of the Latvian Civil Procedure Law. He submitted two
arguments in that regard.
30. Firstly, the applicant argued that in accordance with Article 34(2) of
the Brussels I Regulation (corresponding in substance to section 637(2),
third sub-paragraph, of the Latvian Civil Procedure Law), a judgment given
in default in another Member State could not be recognised if the defendant
had not been served with the document instituting the proceedings in
sufficient time and in such a way as to enable him to arrange for his
defence. He maintained that he had not been duly informed of the
proceedings in Cyprus, although both the Cypriot lawyers who had
represented the claimant company in the Limassol District Court and the
Latvian lawyers who had represented it in the Latvian courts had been
perfectly aware of his business address in Riga. In support of that allegation
he submitted that he had had professional dealings with the Cypriot lawyers,
who had telephoned him and sent faxes to his office, and had met the
Latvian lawyers in person. Hence, they must all have been aware of his
business address. He added that he could also have been reached at his
home address in Garkalne, as he had a residence there that was officially
declared in accordance with the law and the lawyers could have consulted
the municipal land register, where the property he owned was registered
under his name. However, instead of serving notice of the proceedings on
him at one of those addresses, which had been known and accessible, the
8 AVOTIŅŠ v. LATVIA JUDGMENT
lawyers had given the courts an address which they should have realised
could not be used.
31. Secondly, the applicant argued that, under the terms of Article 38(1)
of the Brussels I Regulation and section 637(2), second sub-paragraph, of
the Civil Procedure Law, a judgment had to be enforceable in the State of
origin in order to be enforceable in the Member State addressed. In the
instant case, there had been a threefold breach of those requirements. First,
the claimant had only submitted the text of the Cypriot court judgment to
the Latvian court and not the certificate required by Annex V to the Brussels
I Regulation. In that connection the applicant acknowledged that under
Article 55(1) of the Brussels I Regulation the court in which enforcement
was sought could, in some circumstances, exempt the claimant from the
obligation to produce a certificate. However, in the present case the Latgale
District Court had not made clear whether it considered that the claimant
could be exempted from that obligation and, if so, for what reason. Second,
the Cypriot judgment had contained no reference to the fact that it was
enforceable or to possible judicial remedies. Third, although a judgment had
to be enforceable in the country of origin in order to be enforced in
accordance with the Brussels I Regulation, the claimant company had not
produced any documentary evidence demonstrating that the judgment of
24 May 2004 was enforceable in Cyprus. In view of all these circumstances,
the applicant contended that the judgment could on no account be
recognised and enforced in Latvia.
32. In a judgment of 2 October 2006 the Regional Court allowed the
applicant’s appeal on the merits, quashed the impugned order and rejected
the request for recognition and enforcement of the Cypriot judgment.
33. F.H. Ltd. lodged an appeal against that judgment with the Senate of
the Supreme Court, which examined it on 31 January 2007. At the start of
the hearing F.H. Ltd. submitted copies of several documents to the Senate,
including the certificate referred to in Article 54 of the Brussels I Regulation
and Annex V thereto. The certificate was dated 18 January 2007 and had
been signed by an acting judge of the Limassol District Court. It stated that
the document instituting the proceedings had been served on the applicant
on 27 November 2003. The last part of the certificate, intended for the name
of the person against whom the judgment was enforceable, had been left
blank. When asked to comment on these documents the applicant’s lawyer
contended that they were clearly insufficient to render the judgment
enforceable.
34. In a final judgment of 31 January 2007 the Supreme Court quashed
and annulled the Regional Court judgment of 2 October 2006. It granted
F.H. Ltd.’s request and ordered the recognition and enforcement of the
Cypriot judgment and the entry in the land register of a charge on the
applicant’s property in Garkalne. The relevant extracts from the judgment
read as follows:
AVOTIŅŠ v. LATVIA JUDGMENT 9
“ ... It is clear from the evidence in the case file that the Limassol District Court
judgment became final. This is confirmed by the explanations provided by both
parties at the Regional Court hearing on 2 October 2006, according to which no
appeal had been lodged against the judgment, and by the certificate issued on
18 January 2007... As [the applicant] did not appeal against the judgment, his lawyer’s
submissions to the effect that he was not duly notified of the examination of the case
by a foreign court lack relevance [nav būtiskas nozīmes].
Having regard to the foregoing, the Senate finds that the judgment of the Limassol
District Court (Cyprus) of 24 May 2004 must be recognised and enforced in Latvia.
Article 36 of the [Brussels I] Regulation provides that a foreign judgment may under
no circumstances be reviewed as to its substance; in accordance with section 644(1) of
the Civil Procedure Law, once such judgments have been recognised they are to be
enforced in accordance with the conditions laid down by that Law. ...”
35. On 14 February 2007 the Latgale District Court, basing its decision
on the Supreme Court judgment, issued a payment order (izpildu raksts).
The applicant complied immediately with the terms of the order and paid
the bailiff employed by the claimant company a total of 90,244.62 Latvian
lati (LVL, approximately 129,000 euros (EUR)), comprising
LVL 84,366.04 for the principal debt and LVL 5,878.58 in enforcement
costs. He then requested that the charge on his property in Garkalne be
lifted. In two orders dated 24 January 2008 the judge with responsibility for
land registers (Zemesgrāmatu nodaļas tiesnesis) refused the request. The
applicant lodged an appeal on points of law with the Senate of the Supreme
Court, which, in an order of 14 May 2008, lifted the charge on his property.
II. RELEVANT EUROPEAN UNION AND INTERNATIONAL LAW
MATERIALS
A. General European Union law
1. Fundamental rights in European Union law
36. At the material time the relevant parts of Article 6 of the Treaty on
European Union (TEU) read as follows:
“1. The Union is founded on the principles of liberty, democracy, respect for human
rights and fundamental freedoms, and the rule of law, principles which are common to
the Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed in
Rome on 4 November 1950 and as they result from the constitutional traditions
common to the Member States, as general principles of Community law.
...”
10 AVOTIŅŠ v. LATVIA JUDGMENT
37. Following the entry into force of the Treaty of Lisbon on
1 December 2009, Article 6 of the TEU reads as follows:
“1. The Union recognises the rights, freedoms and principles set out in the Charter
of Fundamental Rights of the European Union of 7 December 2000, as adapted at
Strasbourg, on 12 December 2007, which shall have the same legal value as the
Treaties.
The provisions of the Charter shall not extend in any way the competences of the
Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance
with the general provisions in Title VII of the Charter governing its interpretation and
application and with due regard to the explanations referred to in the Charter, that set
out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s
competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States, shall constitute general
principles of the Union’s law.”
38. Furthermore, since 1 December 2009 the relevant provisions of the
Treaty on the Functioning of the European Union (TFEU) provide:
Article 67
“1. The Union shall constitute an area of freedom, security and justice with respect
for fundamental rights and the different legal systems and traditions of the Member
States.
...
4. The Union shall facilitate access to justice, in particular through the principle of
mutual recognition of judicial and extrajudicial decisions in civil matters.”
Article 81(1)
“The Union shall develop judicial cooperation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and of
decisions in extrajudicial cases. Such cooperation may include the adoption of
measures for the approximation of the laws and regulations of the Member States.”
Article 82(1)
“Judicial cooperation in criminal matters in the Union shall be based on the
principle of mutual recognition of judgments and judicial decisions and shall include
the approximation of the laws and regulations of the Member States in the areas
referred to in paragraph 2 and in Article 83.”
AVOTIŅŠ v. LATVIA JUDGMENT 11
39. Lastly, the second paragraph of Article 249 of the Treaty
establishing the European Community (applicable at the material time and
identical to Article 288, second paragraph, of the TFEU) provided:
“A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member States.”
40. The relevant provisions of the Charter of Fundamental Rights of the
European Union (which had not yet acquired binding force at the material
time) provide:
Article 47 – Right to an effective remedy and to a fair trial
“Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal previously established by law. Everyone shall have
the possibility of being advised, defended and represented.
...”
Article 51 – Field of application
“1. The provisions of this Charter are addressed to the institutions, bodies, offices
and agencies of the Union with due regard for the principle of subsidiarity and to the
Member States only when they are implementing Union law...
...”
Article 52 – Scope and interpretation of rights and principles
“1. Any limitation on the exercise of the rights and freedoms recognised by this
Charter must be provided for by law and respect the essence of those rights and
freedoms. Subject to the principle of proportionality, limitations may be made only if
they are necessary and genuinely meet objectives of general interest recognised by the
Union or the need to protect the rights and freedoms of others.
...
3. In so far as this Charter contains rights which correspond to rights guaranteed by
the Convention for the Protection of Human Rights and Fundamental Freedoms, the
meaning and scope of those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law providing more extensive
protection.
4. In so far as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be
interpreted in harmony with those traditions.
...”
12 AVOTIŅŠ v. LATVIA JUDGMENT
Article 53 – Level of protection
“Nothing in this Charter shall be interpreted as restricting or adversely affecting
human rights and fundamental freedoms as recognised, in their respective fields of
application, by Union law and international law and by international agreements to
which the Union or all the Member States are party, including the European
Convention for the Protection of Human Rights and Fundamental Freedoms, and by
the Member States’ constitutions.”
41. In the case of Krombach v Bamberski (Case C-7/98, judgment of
28 March 2000, ECR I-1935), the Court of Justice of the European Union
(known as the “Court of Justice of the European Communities” prior to the
entry into force of the Treaty of Lisbon on 1 December 2009 – hereinafter
“the CJEU”), held as follows:
“25. The Court has consistently held that fundamental rights form an integral part
of the general principles of law whose observance the Court ensures (see, in
particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33). For that purpose, the
Court draws inspiration from the constitutional traditions common to the Member
States and from the guidelines supplied by international treaties for the protection of
human rights on which the Member States have collaborated or of which they are
signatories. In that regard, the European Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter ‘the ECHR’) has particular
significance (see, inter alia, Case 222/84 Johnston v Chief Constable of the Royal
Ulster Constabulary [1986] ECR 1651, paragraph 18).
26. The Court has thus expressly recognised the general principle of Community
law that everyone is entitled to fair legal process, which is inspired by those
fundamental rights (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR
I-8417, paragraphs 20 and 21, and judgment of 11 January 2000 in Joined Cases
C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR
I-0000, paragraph 17).
27. Article F(2) of the Treaty on European Union (now, after amendment, Article
6(2) EU) embodies that case-law. It provides: ‘The Union shall respect fundamental
rights, as guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms signed in Rome on 4 November1950 and as they result
from the constitutional traditions common to the Member States, as general principles
of Community law’.”
42. In its judgment in ASML Netherlands BV v Semiconductor Industry
Services GmbH (SEMIS) (Case C-283/05, judgment of 14 December 2006,
ECR I-12041), the CJEU reiterated the following:
“26. According to settled case-law, fundamental rights form an integral part of the
general principles of law whose observance the Court ensures... For that purpose, the
Court draws inspiration from the constitutional traditions common to the Member
States and from the guidelines supplied by international treaties for the protection of
human rights on which the Member States have collaborated or to which they are
signatories. In that regard, the European Convention for the Protection of Human
Rights and Fundamental Freedoms (‘ECHR’) has special significance...
27. It follows from the ECHR, as interpreted by the European Court of Human
Rights, that the rights of the defence, which derive from the right to a fair legal
process enshrined in Article 6 of that convention, require specific protection intended
to guarantee effective exercise of the defendant’s rights (see Eur. Court H.R., Artico
AVOTIŅŠ v. LATVIA JUDGMENT 13
v Italy judgment of 13 May 1980, Series A No 37, § 33, and Eur. Court H.R., T v Italy
judgment of 12 October 1992, Series A No 245 C, § 28).”
43. In its judgment in DEB Deutsche Energiehandels- und
Beratungsgesellschaft mbH v Bundesrepublik Deutschland (Case C-279/09,
judgment of 22 December 2010, ECR I-13849), delivered after the entry
into force of the Treaty of Lisbon and hence after the Charter of
Fundamental Rights had acquired the same legal value as the Treaties, the
CJEU held:
“29. The question referred thus concerns the right of a legal person to effective
access to justice and, accordingly, in the context of EU law, it concerns the principle
of effective judicial protection. That principle is a general principle of EU law
stemming from the constitutional traditions common to the Member States, which has
been enshrined in Articles 6 and 13 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950
(‘the ECHR’) ...
30. As regards fundamental rights, it is important, since the entry into force of the
Lisbon Treaty, to take account of the Charter, which has ‘the same legal value as the
Treaties’ pursuant to the first subparagraph of Article 6(1) TEU. Article 51(1) of the
Charter states that the provisions thereof are addressed to the Member States when
they are implementing EU law.
31. In that connection, the first paragraph of Article 47 of the Charter provides that
everyone whose rights and freedoms guaranteed by EU law are violated has the right
to an effective remedy before a tribunal in compliance with the conditions laid down
in that article. Under the second paragraph of Article 47, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and impartial tribunal
previously established by law. Everyone is to have the possibility of being advised,
defended and represented. The third paragraph of Article 47 of the Charter provides
specifically that legal aid is to be made available to those who lack sufficient
resources in so far as such aid is necessary to ensure effective access to justice.
32. According to the explanations relating to that article, which, in accordance with
the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to
be taken into consideration for the interpretation of the Charter, the second paragraph
of Article 47 of the Charter corresponds to Article 6(1) of the ECHR.”
44. In Gascogne Sack Deutschland GmbH v Commission (Case
C-40/12 P, judgment of 26 November 2013), the CJEU stressed the
continuity of the legal system before and after the entry into force of the
Treaty of Lisbon, finding as follows:
“28. As to the question of whether the entry into force of the Lisbon Treaty ought to
have been regarded, as the appellant submits, as a matter which came to light in the
course of the proceedings and, on that basis, gave good grounds, in accordance with
the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court,
for introducing new pleas in law, the Court of Justice has held that the entry into force
of that treaty, incorporating the Charter into European Union primary law, cannot be
considered a new matter of law within the meaning of the first subparagraph of Article
42(2) of its Rules of Procedure. In that context, the Court has noted that, even before
that treaty entered into force, it had found on several occasions that the right to a fair
trial, which derives inter alia from Article 6 ECHR, constitutes a fundamental right
14 AVOTIŅŠ v. LATVIA JUDGMENT
which the European Union respects as a general principle under Article 6(2) EU (see,
in particular, Case C-289/11 P Legris Industries v Commission, paragraph 36).”
45. Lastly, with regard to the scope of the rights guaranteed by the
Charter of Fundamental Rights, the CJEU held in J. McB. v L.E. (Case
C-400/10 PPU, judgment of 5 October 2010):
“53. Moreover, it follows from Article 52(3) of the Charter that, in so far as the
Charter contains rights which correspond to rights guaranteed by the ECHR, their
meaning and scope are to be the same as those laid down by the ECHR. However, that
provision does not preclude the grant of wider protection by European Union law.
Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her
private and family life, home and communications’. The wording of Article 8(1) of
the ECHR is identical to that of the said Article 7, except that it uses the expression
‘correspondence’ instead of ‘communications’. That being so, it is clear that the said
Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the
ECHR. Article 7 of the Charter must therefore be given the same meaning and the
same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the
European Court of Human Rights (see, by analogy, Case C-450/06 Varec [2008] ECR
I-581, paragraph 48).”
2. Fundamental rights and the principle of mutual trust
46. In its judgment in N.S. v Secretary of State for the Home Department
(Joined Cases C-411/10 and C-493/10, judgment of 21 December 2011,
ECR I-13905), given in the context of the application of Regulation
No 343/2003 establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in
one of the Member States by a third-country national (“the Dublin
Regulation”), the CJEU held:
“77. According to settled case-law, the Member States must not only interpret their
national law in a manner consistent with European Union law but also make sure they
do not rely on an interpretation of an instrument of secondary legislation which would
be in conflict with the fundamental rights protected by the European Union legal order
or with the other general principles of European Union law (see, to that effect, Case
C-101/01 Lindqvist [2003] ECR I-12971, paragraph 87, and Case C-305/05 Ordre des
barreaux francophones et germanophone and Others [2007] ECR I-5305, paragraph
28).
78. Consideration of the texts which constitute the Common European Asylum
System shows that it was conceived in a context making it possible to assume that all
the participating States, whether Member States or third States, observe fundamental
rights, including the rights based on the Geneva Convention and the 1967 Protocol,
and on the ECHR, and that the Member States can have confidence in each other in
that regard.
...
80. In those circumstances, it must be assumed that the treatment of asylum seekers
in all Member States complies with the requirements of the Charter, the Geneva
Convention and the ECHR.
81. It is not however inconceivable that that system may, in practice, experience
major operational problems in a given Member State, meaning that there is a
AVOTIŅŠ v. LATVIA JUDGMENT 15
substantial risk that asylum seekers may, when transferred to that Member State, be
treated in a manner incompatible with their fundamental rights.
...
83. At issue here is the raison d’être of the European Union and the creation of an
area of freedom, security and justice and, in particular, the Common European
Asylum System, based on mutual confidence and a presumption of compliance, by
other Member States, with European Union law and, in particular, fundamental rights.
...
94. It follows from the foregoing that in situations such as that at issue in the cases
in the main proceedings, to ensure compliance by the European Union and its Member
States with their obligations concerning the protection of the fundamental rights of
asylum seekers, the Member States, including the national courts, may not transfer an
asylum seeker to the ‘Member State responsible’ within the meaning of Regulation
No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum
procedure and in the reception conditions of asylum seekers in that Member State
amount to substantial grounds for believing that the asylum seeker would face a real
risk of being subjected to inhuman or degrading treatment within the meaning of
Article 4 of the Charter.
...
98. The Member State in which the asylum seeker is present must, however, ensure
that it does not worsen a situation where the fundamental rights of that applicant have
been infringed by using a procedure for determining the Member State responsible
which takes an unreasonable length of time. If necessary, that Member State must
itself examine the application in accordance with the procedure laid down in Article
3(2) of Regulation No 343/2003.
99. It follows from all of the foregoing considerations that, as stated by the
Advocate General in paragraph 131 of her Opinion, an application of Regulation
No 343/2003 on the basis of the conclusive presumption that the asylum seeker’s
fundamental rights will be observed in the Member State primarily responsible for his
application is incompatible with the duty of the Member States to interpret and apply
Regulation No 343/2003 in a manner consistent with fundamental rights.
100. In addition, as stated by N.S., were Regulation No 343/2003 to require a
conclusive presumption of compliance with fundamental rights, it could itself be
regarded as undermining the safeguards which are intended to ensure compliance with
fundamental rights by the European Union and its Member States.
101. That would be the case, inter alia, with regard to a provision which laid down
that certain States are ‘safe countries’ with regard to compliance with fundamental
rights, if that provision had to be interpreted as constituting a conclusive presumption,
not admitting of any evidence to the contrary.
...
104. In those circumstances, the presumption underlying the relevant legislation,
stated in paragraph 80 above, that asylum seekers will be treated in a way which
complies with fundamental rights, must be regarded as rebuttable.
105. In the light of those factors, the answer to the questions referred is that
European Union law precludes the application of a conclusive presumption that the
Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible
observes the fundamental rights of the European Union.”
16 AVOTIŅŠ v. LATVIA JUDGMENT
47. In the case of Melloni v Ministerio Fiscal (Case C-399/11, judgment
of 26 February 2013), concerning in particular the issue whether a European
Union Member State could refuse to execute a European arrest warrant on
the basis of Article 53 of the Charter of Fundamental Rights on grounds of
infringement of the fundamental rights of the person concerned guaranteed
by the national Constitution, the CJEU found as follows:
“60. It is true that Article 53 of the Charter confirms that, where an EU legal act
calls for national implementing measures, national authorities and courts remain free
to apply national standards of protection of fundamental rights, provided that the level
of protection provided for by the Charter, as interpreted by the Court, and the
primacy, unity and effectiveness of EU law are not thereby compromised.
61. However, [the] Framework Decision [governing the European arrest warrant]
does not allow Member States to refuse to execute a European arrest warrant when the
person concerned is in one of the situations provided for ...
62. It should also be borne in mind that the adoption of Framework Decision
2009/299, which inserted that provision into Framework Decision 2002/584, is
intended to remedy the difficulties associated with the mutual recognition of decisions
rendered in the absence of the person concerned at his trial arising from the
differences as among the Member States in the protection of fundamental rights. That
framework decision effects a harmonisation of the conditions of execution of a
European arrest warrant in the event of a conviction rendered in absentia, which
reflects the consensus reached by all the Member States regarding the scope to be
given under EU law to the procedural rights enjoyed by persons convicted in absentia
who are the subject of a European arrest warrant.
63. Consequently, allowing a Member State to avail itself of Article 53 of the
Charter to make the surrender of a person convicted in absentia conditional upon the
conviction being open to review in the issuing Member State, a possibility not
provided for under [the] Framework Decision ..., in order to avoid an adverse effect
on the right to a fair trial and the rights of the defence guaranteed by the constitution
of the executing Member State, by casting doubt on the uniformity of the standard of
protection of fundamental rights as defined in that framework decision, would
undermine the principles of mutual trust and recognition which that decision purports
to uphold and would, therefore, compromise the efficacy of that framework decision.
64. In the light of the foregoing considerations, the answer to the third question is
that Article 53 of the Charter must be interpreted as not allowing a Member State to
make the surrender of a person convicted in absentia conditional upon the conviction
being open to review in the issuing Member State, in order to avoid an adverse effect
on the right to a fair trial and the rights of the defence guaranteed by its constitution.”
48. In the case of Alpha Bank Cyprus Ltd v Dau Si Senh and Others
(Case C-519/13, judgment of 16 September 2015), concerning the
application of Regulation (EC) No 1393/2007 of the European Parliament
and of the Council of 13 November 2007 on the service in the Member
States of judicial and extrajudicial documents in civil or commercial
matters, the CJEU held:
“30. Therefore, with the aim of improving the efficiency and speed of judicial
procedures and ensuring proper administration of justice, that regulation establishes
the principle of direct transmission of judicial and extrajudicial documents between
the Member States (see judgment in Leffler, C-443/03, EU:C:2005:665, paragraph 3),
AVOTIŅŠ v. LATVIA JUDGMENT 17
which has the effect of simplifying and accelerating the procedures. Those objectives
are noted in recitals 6 to 8 in the preamble to that regulation.
31. However, as the Court has already held on numerous occasions, those
objectives cannot be attained by undermining in any way the rights of the defence of
the addressees, which derive from the right to a fair hearing, enshrined in the second
paragraph of Article 47 of the Charter of Fundamental Rights of the European Union
and Article 6(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, signed in Rome on 4 November 1950 (see, inter alia,
judgment in Alder, C-325/11, EU:C:2012:824, paragraph 35 and the case-law cited).”
3. Opinion 2/13
49. In Opinion 2/13 of 18 December 2014 on the draft agreement
providing for the accession of the European Union to the European
Convention on Human Rights, the CJEU found that the draft agreement was
not compatible with the Treaty on European Union. The relevant parts of
the Opinion provide:
“187. In that regard, it must be borne in mind, in the first place, that Article 53 of
the Charter provides that nothing therein is to be interpreted as restricting or adversely
affecting fundamental rights as recognised, in their respective fields of application, by
EU law and international law and by international agreements to which the EU or all
the Member States are party, including the ECHR, and by the Member States’
constitutions.
188. The Court of Justice has interpreted that provision as meaning that the
application of national standards of protection of fundamental rights must not
compromise the level of protection provided for by the Charter or the primacy, unity
and effectiveness of EU law (judgment in Melloni, EU:C:2013:107, paragraph 60).
189. In so far as Article 53 of the ECHR essentially reserves the power of the
Contracting Parties to lay down higher standards of protection of fundamental rights
than those guaranteed by the ECHR, that provision should be coordinated with Article
53 of the Charter, as interpreted by the Court of Justice, so that the power granted to
Member States by Article 53 of the ECHR is limited – with respect to the rights
recognised by the Charter that correspond to those guaranteed by the ECHR – to that
which is necessary to ensure that the level of protection provided for by the Charter
and the primacy, unity and effectiveness of EU law are not compromised.
...
191. In the second place, it should be noted that the principle of mutual trust
between the Member States is of fundamental importance in EU law, given that it
allows an area without internal borders to be created and maintained. That principle
requires, particularly with regard to the area of freedom, security and justice, each of
those States, save in exceptional circumstances, to consider all the other Member
States to be complying with EU law and particularly with the fundamental rights
recognised by EU law (see, to that effect, judgments in N. S. and Others, C-411/10
and C-493/10, EU:C:2011:865, paragraphs 78 to 80, and Melloni, EU:C:2013:107,
paragraphs 37 and 63).
192. Thus, 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 not only may they not demand a higher level of national protection of
fundamental rights from another Member State than that provided by EU law, but,
18 AVOTIŅŠ v. LATVIA JUDGMENT
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.
193. The approach adopted in the agreement envisaged, which is to treat the EU as
a State and to give it a role identical in every respect to that of any other Contracting
Party, specifically disregards the intrinsic nature of the EU and, in particular, fails to
take into consideration the fact that the Member States have, by reason of their
membership of the EU, accepted that relations between them as regards the matters
covered by the transfer of powers from the Member States to the EU are governed by
EU law to the exclusion, if EU law so requires, of any other law.
194. In so far as the ECHR would, in requiring the EU and the Member States to be
considered Contracting Parties not only in their relations with Contracting Parties
which are not Member States of the EU but also in their relations with each other,
including where such relations are governed by EU law, require a Member State to
check that another Member State has observed fundamental rights, even though EU
law imposes an obligation of mutual trust between those Member States, accession is
liable to upset the underlying balance of the EU and undermine the autonomy of EU
law.”
4. Provisions concerning preliminary rulings
50. Article 234 of the Treaty establishing the European Community
(applicable at the relevant time and replaced by Article 267 of the TFEU)
read as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
...
(b) the validity and interpretation of acts of the institutions of the Community and
of the ECB;
...
Where such a question is raised before any court or tribunal of a Member State, that
court or tribunal may, if it considers that a decision on the question is necessary to
enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a
Member State against whose decisions there is no judicial remedy under national law,
that court or tribunal shall bring the matter before the Court of Justice.”
51. In the case of Srl CILFIT and Lanificio di Gavardo SpA v Ministry
of Health (Case 283/81, judgment of 6 October 1982, ECR 3415), the CJEU
spelled out the extent of the obligation imposed by the former
Article 177(3) of the Treaty establishing the European Economic
Community (equivalent to the third paragraph of Article 234 of the Treaty
establishing the European Community). It held as follows:
“The third paragraph of Article 177 ... is to be interpreted as meaning that a court or
tribunal against whose decisions there is no judicial remedy under national law is
required, where a question of Community law is raised before it, to comply with its
obligation to bring the matter before the Court of Justice, unless it has established that
the correct application of Community law is so obvious as to leave no scope for any
reasonable doubt. The existence of such a possibility must be assessed in the light of
the specific characteristics of Community law, the particular difficulties to which its
AVOTIŅŠ v. LATVIA JUDGMENT 19
interpretation gives rise and the risk of divergences in judicial decisions within the
Community.”
52. The scope of that case-law was further defined in the case of
Ferreira da Silva e Brito and Others v Estado português (Case C-160/14,
judgment of 9 September 2015), in which the CJEU held as follows:
“36. By its second question, the referring court seeks to ascertain whether, in
circumstances such as those at issue in the main proceedings and, in particular,
because of the fact that lower courts have given conflicting decisions concerning the
interpretation of the concept of a ‘transfer of a business’ within the meaning of Article
1(1) of Directive 2001/23, the third paragraph of Article 267 TFEU must be construed
as meaning that a court or tribunal against whose decisions there is no judicial remedy
under national law is in principle obliged to refer the matter to the Court of Justice in
order to obtain an interpretation of that concept.
37. In that regard, although it is true that the procedure laid down in Article 267
TFEU is an instrument for cooperation between the Court of Justice and the national
courts, by means of which the Court provides the national courts with the points of
interpretation of EU law which they need in order to decide the disputes before them,
the fact remains that when there is no judicial remedy under national law against the
decision of a court or tribunal of a Member State, that court or tribunal is, in principle,
obliged to bring the matter before the Court of Justice under the third paragraph of
Article 267 TFEU where a question relating to the interpretation of EU law is raised
before it (see judgment in Consiglio nazionale dei geologi and Autorità garante della
concorrenza e del mercato, C-136/12, EU:C:2013:489, paragraph 25 and the case-law
cited).
38. As regards the extent of that obligation, it follows from settled case-law,
beginning with the judgment in Cilfit and Others (283/81, EU:C:1982:335), that a
court or tribunal against whose decisions there is no judicial remedy under national
law is obliged, where a question of EU law is raised before it, to comply with its
obligation to bring the matter before the Court of Justice, unless it has established that
the question raised is irrelevant or that the provision of EU law concerned has already
been interpreted by the Court or that the correct application of EU law is so obvious as
to leave no scope for any reasonable doubt.
39. The Court has also made clear that the existence of such a possibility must be
assessed in the light of the specific characteristics of EU law, the particular difficulties
to which the interpretation of the latter gives rise and the risk of divergences in
judicial decisions within the European Union (judgment in Intermodal Transports,
C-495/03, EU:C:2005:552, paragraph 33).
40. It is true that the national court or tribunal has sole responsibility for
determining whether the correct application of EU law is so obvious as to leave no
scope for any reasonable doubt and for deciding, as a result, to refrain from referring
to the Court a question concerning the interpretation of EU law which has been raised
before it (see judgment in Intermodal Transports, C-495/03, EU:C:2005:552,
paragraph 37 and the case-law cited).
41. In itself, the fact that other national courts or tribunals have given contradictory
decisions is not a conclusive factor capable of triggering the obligation set out in the
third paragraph of Article 267 TFEU.
42. A court or tribunal adjudicating at last instance may take the view that, although
the lower courts have interpreted a provision of EU law in a particular way, the
interpretation that it proposes to give of that provision, which is different from the
20 AVOTIŅŠ v. LATVIA JUDGMENT
interpretation espoused by the lower courts, is so obvious that there is no reasonable
doubt.
43. However, so far as the area under consideration in the present case is concerned
and as is clear from paragraphs 24 to 27 of this judgment, the question as to how the
concept of a ‘transfer of a business’ should be interpreted has given rise to a great deal
of uncertainty on the part of many national courts and tribunals which, as a
consequence, have found it necessary to make a reference to the Court of Justice. That
uncertainty shows not only that there are difficulties of interpretation, but also that
there is a risk of divergences in judicial decisions within the European Union.
44. It follows that, in circumstances such as those of the case before the referring
court, which are characterised both by conflicting lines of case-law at national level
regarding the concept of a ‘transfer of a business’ within the meaning of Directive
2001/23 and by the fact that that concept frequently gives rise to difficulties of
interpretation in the various Member States, a national court or tribunal against whose
decisions there is no judicial remedy under national law must comply with its
obligation to make a reference to the Court, in order to avert the risk of an incorrect
interpretation of EU law.
45. Accordingly, the answer to the second question is that, in circumstances such as
those of the case in the main proceedings, which are characterised both by the fact that
there are conflicting decisions of lower courts or tribunals regarding the interpretation
of the concept of a ‘transfer of a business’ within the meaning of Article 1(1) of
Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties
of interpretation in the various Member States, the third paragraph of Article 267
TFEU must be construed as meaning that a court or tribunal against whose decisions
there is no judicial remedy under national law is obliged to make a reference to the
Court for a preliminary ruling concerning the interpretation of that concept.”
B. Provisions concerning the recognition and enforcement of foreign
judgments in civil and commercial matters
1. Regulation No 44/2001 (Brussels I): version applied in the instant
case
(a) Text of the Regulation
53. Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters (“the Brussels I Regulation”) entered into force on
1 March 2002. It replaced the Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters of
27 September 1968 and was binding on all the European Union Member
States with the exception of Denmark. The provisions cited below, which
were applicable in the present case, remained in force until 10 January 2015,
the date of entry into force of the new recast version, known as “Brussels
I bis”.
AVOTIŅŠ v. LATVIA JUDGMENT 21
54. Recitals 16 to 18 of the Preamble to Regulation No 44/2001 read as
follows:
“(16) Mutual trust in the administration of justice in the Community justifies
judgments given in a Member State being recognised automatically without the need
for any procedure except in cases of dispute.
(17) By virtue of the same principle of mutual trust, the procedure for making
enforceable in one Member State a judgment given in another must be efficient and
rapid. To that end, 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.
(18) However, respect for the rights of the defence means that the defendant should
be able to appeal in an adversarial procedure, against the declaration of enforceability,
if he considers one of the grounds for non-enforcement to be present. Redress
procedures should also be available to the claimant where his application for a
declaration of enforceability has been rejected.”
55. The relevant Articles of the Regulation read as follows:
Article 26
“1. Where a defendant domiciled in one Member State is sued in a court of another
Member State and does not enter an appearance, the court shall declare of its own
motion that it has no jurisdiction unless its jurisdiction is derived from the provisions
of this Regulation.
2. The court shall stay the proceedings so long as it is not shown that the defendant
has been able to receive the document instituting the proceedings or an equivalent
document in sufficient time to enable him to arrange for his defence, or that all
necessary steps have been taken to this end.
...”
Article 33
“1. A judgment given in a Member State shall be recognised in the other Member
States without any special procedure being required.
2. Any interested party who raises the recognition of a judgment as the principal
issue in a dispute may, in accordance with the procedures provided for in Sections 2
and 3 of this Chapter, apply for a decision that the judgment be recognised.
...”
Article 34
“A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member State in
which recognition is sought;
2. where it was given in default of appearance, if the defendant was not served with
the document which instituted the proceedings or with an equivalent document in
sufficient time and in such a way as to enable him to arrange for his defence, unless
the defendant failed to commence proceedings to challenge the judgment when it was
possible for him to do so;
22 AVOTIŅŠ v. LATVIA JUDGMENT
...”
Article 35
“1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or
6 of Chapter II, or in a case provided for in Article 72.
2. In its examination of the grounds of jurisdiction referred to in the foregoing
paragraph, the court or authority applied to shall be bound by the findings of fact on
which the court of the Member State of origin based its jurisdiction.
3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of
origin may not be reviewed. ...”
Article 36
“Under no circumstances may a foreign judgment be reviewed as to its substance.”
Article 37(1)
“A court of a Member State in which recognition is sought of a judgment given in
another Member State may stay the proceedings if an ordinary appeal against the
judgment has been lodged.”
Article 38(1)
“A judgment given in a Member State and enforceable in that State shall be
enforced in another Member State when, on the application of any interested party, it
has been declared enforceable there.”
Article 41
“The judgment shall be declared enforceable ... without any review under Articles
34 and 35. The party against whom enforcement is sought shall not at this stage of the
proceedings be entitled to make any submissions on the application.”
Article 43
“1. The decision on the application for a declaration of enforceability may be
appealed against by either party.
...
3. The appeal shall be dealt with in accordance with the rules governing procedure
in contradictory matters.”
Article 45
“1. The court with which an appeal is lodged under Article 43 ... shall refuse or
revoke a declaration of enforceability only on one of the grounds specified in Articles
34 and 35. It shall give its decision without delay.
2. Under no circumstances may the foreign judgment be reviewed as to its
substance.”
AVOTIŅŠ v. LATVIA JUDGMENT 23
Article 46(1)
“The court with which an appeal is lodged under Article 43 ... may, on the
application of the party against whom enforcement is sought, stay the proceedings if
an ordinary appeal has been lodged against the judgment in the Member State of
origin or if the time for such an appeal has not yet expired; in the latter case, the court
may specify the time within which such an appeal is to be lodged.”
Article 54
“The court or competent authority of a Member State where a judgment was given
shall issue, at the request of any interested party, a certificate using the standard form
in Annex V to this Regulation.”
(b) Explanatory memorandum concerning the proposal for a Regulation
56. In so far as relevant to the present case, the explanatory
memorandum concerning the proposal for a Council Regulation (EC) on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters presented by the Commission (document COM/99/0348
final, published in the Official Journal of the European Communities
C 376 E of 28 December 1999, pp. 1-17) stated as follows:
“2.2. Legal basis
The subject-matter covered by the [Brussels] Convention is now within the ambit of
Article 65 of the Treaty; the legal basis for this proposal is Article 61(c) of that
Treaty.
The form chosen for the instrument – a regulation – is warranted by a number of
considerations. The Member States cannot be left with the discretion not only to
determine rules of jurisdiction, the purpose of which is to achieve certainty in the law
for the benefit of individuals and economic operators, but also the procedures for the
recognition and enforcement of judgments, which must be clear and uniform in all
Member States.
...
Section 2 - Enforcement
This Section describes the procedure to be followed either for formal recognition ...
or for a declaration of enforceability in a Member State other than the State of origin
of the judgment. The purpose of this procedure, of course, is to declare a judgment
that is enforceable in the State of origin enforceable; there is no effect on actual
enforcement of the judgment in the Member State addressed. The procedure is
directed towards obtaining a rapid decision. Considerable changes have accordingly
been made to the Brussels Convention mechanism. For one thing, the court or
authority responsible for declaring the judgment enforceable in the Member State
addressed has no power to proceed of its own motion to review the grounds for nonenforcement
of the judgment provided for by Articles 41 and 42. These may be
reviewed, if at all, only in the course of an appeal from the party against whom
enforcement has been authorised. The court or competent authority is limited to
making formal checks on the documents presented in support of the application; they
are determined by the Regulation. Moreover, the grounds for non-recognition or
non-enforcement have been narrowed down quite considerably.
24 AVOTIŅŠ v. LATVIA JUDGMENT
...
Article 41 [corresponding to Article 34 of the EC Regulation]
This Article determines the sole grounds on which a court seised of an appeal may
refuse or revoke a declaration of enforceability. These grounds have been reframed in
a restrictive manner to improve the free movement of judgments.
For one thing, adding the adverb ‘manifestly’ in point 1 underscores the exceptional
nature of the public policy ground. For another, the ground most commonly relied on
by debtors to oppose enforcement has been modified to avoid abuses of procedure. To
prevent enforcement being excluded, it will be enough for the defaulting defendant in
the State of origin to have been served with notice in sufficient time and in such a way
as to enable him to arrange for his defence. A mere formal irregularity in the service
procedure will not debar recognition or enforcement if it has not prevented the debtor
from arranging for his defence. Moreover, if the debtor was in a position to appeal in
the State of origin on grounds of a procedural irregularity and has not done so, he is
not entitled to invoke that procedural irregularity as a ground for refusing or revoking
a declaration in the State addressed. ...”
(c) The CJEU’s case-law
57. In the case of Klomps v Michel (Case C-166/80, judgment of 16 June
1981, ECR 1593), the CJEU further defined the scope of the guarantees
contained in Article 27(2) of the Brussels Convention (corresponding in part
to Article 34(2) of the Brussels I Regulation). It held that the provision in
question remained applicable where the defendant had lodged an objection
against a judgment given in default and a court of the State in which the
judgment was given had held the objection to be inadmissible on the ground
that the time for lodging an objection had expired. Furthermore, even where
a court in the State of origin had held, in separate adversarial proceedings,
that service had been duly effected, Article 27(2) still required the court in
which enforcement was sought to examine whether service had been
effected in sufficient time to enable the defendant to arrange for his defence.
58. In its judgment in ASML Netherlands BV v Semiconductor Industry
Services GmbH (SEMIS), cited above, the CJUE was called on to give a
ruling as to whether the condition that it must have been “possible”, within
the meaning of Article 34(2) in fine of the Brussels I Regulation, to
commence proceedings to challenge the default judgment, required the
judgment to have been duly served on the defendant or whether it was
sufficient for the latter to have become aware of its existence at the stage of
the enforcement proceedings in the State in which enforcement was sought.
The CJEU adopted the following reasoning:
“20. ... Article 34(2) of Regulation No 44/2001 does not necessarily require the
document which instituted the proceedings to be duly served, but does require that the
rights of defence are effectively respected.
21. Finally, Article 34(2) provides an exception to ground for refusal of recognition
or enforcement of a judgment, that is to say, in the case where the defendant has failed
to commence proceedings to challenge the judgment when it was possible for him to
do so.
AVOTIŅŠ v. LATVIA JUDGMENT 25
22. Therefore, Article 34(2) of Regulation No 44/2001 must be interpreted in the
light of the objectives and the scheme of that regulation.
23. First, as regards the objectives of that regulation, it is clear from the 2nd, 6th,
16th and 17th recitals in the preamble that it seeks to ensure the free movement of
judgments from Member States in civil and commercial matters by simplifying the
formalities with a view to their rapid and simple recognition and enforcement.
24. However, that objective cannot be attained by undermining in any way the right
to a fair hearing ...
25. The same requirement appears in the 18th recital in the preamble to Regulation
No 44/2001, pursuant to which respect for the rights of defence means that the
defendant should be able to appeal in an adversarial procedure, against the declaration
of enforceability of a decision, if he considers one of the grounds for non-enforcement
to be present.
...
29. Second, in relation to the scheme established by Regulation No 44/2001 as
regards recognition and enforcement, it must be observed ... that the observance of the
rights of defence of a defendant in default of appearance is ensured by a double
review.
30. In the original proceedings in the State in which the judgment was given, it
follows from the combined application of Articles 26(2) of Regulation No 44/2001
and Article 19(1) of Regulation No 1348/2000, that the court hearing the case must
stay the proceedings so long as it is not shown that the defendant has been able to
receive the document which instituted the proceedings or an equivalent document in
sufficient time to enable him to arrange for his defence, or that all necessary steps
have been taken to this end.
31. If, during recognition and enforcement proceedings in the State in which
enforcement is sought, the defendant commences proceedings against a declaration of
enforceability issued in the State in which the judgment was given, the court hearing
the action may find it necessary to examine a ground for non-recognition or
enforcement, such as that referred to in Article 34(2) of Regulation No 44/2001.
32. It is in light of those considerations that it must be established whether, where
the default judgment has not been served, the mere fact that the person against whom
enforcement of the judgment is sought was aware of its existence at the stage of
enforcement is sufficient to justify the conclusion that it was possible for him, within
the meaning of Article 34(2) of Regulation No 44/2001, to commence proceedings to
challenge that judgment.
33. It is common ground that, in the case in the main proceedings, the default
judgment was not served on the defendant, so that the latter was unaware of its
contents.
34. As the Austrian, German, Netherlands and Polish Government and the
Commission of the European Communities have rightly argued in their observations
submitted to the Court, the commencement of proceedings against a judgment is
possible only if the person bringing those proceedings was able to familiarise himself
with its contents, the mere fact that the person concerned is aware of the existence of
that judgment being insufficient in that regard.
35. In order for the defendant to have the opportunity to bring proceedings enabling
him to assert his rights, as provided for in the case-law set out in paragraphs 27 and 28
26 AVOTIŅŠ v. LATVIA JUDGMENT
of this judgment, he should be able to acquaint himself with the grounds of the default
judgment in order to challenge them effectively.
36. It follows that only knowledge by the defendant of the contents of the default
judgment guarantees, in accordance with the requirements of respect for the rights of
defence and the effective exercise of those rights, that it is possible for the defendant,
within the meaning of Article 34(2) of Regulation No 44/2001, to commence
proceedings to challenge that judgment before the courts of the State in which the
judgment was given.
...
39. Article 34(2) of Regulation No 44/2001 does not mean, however, that the
defendant is required to take additional steps going beyond normal diligence in the
defence of his rights, such as those consisting in becoming acquainted with the
contents of a judgment delivered in another Member State.
40. Consequently, in order to justify the conclusion that it was possible for a
defendant to commence proceedings to challenge a default judgment against him,
within the meaning of Article 34(2) of Regulation No 44/2001, he must have been
aware of the contents of that decision, which presupposes that it was served on him.
...
49. In the light of all the foregoing considerations, the answer to the questions
referred must be that Article 34(2) of Regulation No 44/2001 is to be interpreted as
meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a
default judgment against him only if he was in fact acquainted with its contents,
because it was served on him in sufficient time to enable him to arrange for his
defence before the courts of the State in which the judgment was given.”
59. In the case of Bernardus Hendrikman and Maria Feyen v Magenta
Druck & Verlag GmbH (Case C-78/95, judgment of 10 October 1996, ECR
I-4943), the CJEU found that where proceedings had been initiated against a
person without his knowledge and a lawyer had appeared on his behalf but
without his authority, the defendant was still to be regarded as being “in
default of appearance” within the meaning of Article 27(2) of the Brussels
Convention, even if the proceedings before the court first seised had become
proceedings inter partes.
60. In Trade Agency Ltd v Seramico Investments Ltd (Case C-619/10,
judgment of 6 September 2012), the CJEU was called on to give a ruling as
to whether, where the judgment given in default of appearance in the
Member State of origin was accompanied by the certificate referred to in
Annex V to the Brussels I Regulation, the court of the Member State in
which enforcement was sought could nevertheless check whether the
information in the certificate was consistent with the evidence. The CJEU
found as follows:
“32. Specifically as regards the ground mentioned in Article 34(2) of Regulation
No 44/2001, to which Article 45(1) thereof refers, it must be held that it aims to
ensure that the rights of defence of a defendant in default of appearance delivered in
the Member State of origin are observed by a double review ... Under that system,
where an appeal is lodged, the court of the Member State in which enforcement is
sought must refuse or revoke the enforcement of a foreign judgment given in default
AVOTIŅŠ v. LATVIA JUDGMENT 27
of appearance if the defendant was not served with the document which instituted the
proceedings or with an equivalent document in sufficient time and in such a way as to
enable him to arrange for his defence, unless the defendant failed to commence
proceedings to challenge the judgment whereas it was possible for him to do so.
33. In that context, it is common ground that whether the defendant was served with
the document which instituted the proceedings is a relevant aspect of the overall
assessment of a factual nature ..., which must be conducted by the court of the
Member State in which enforcement is sought in order to ascertain whether that
defendant has the time necessary in order to prepare his defence or to take the steps
necessary to prevent a decision delivered in default of appearance.
34. That being the case, it must be observed that the fact that the foreign judgment
is accompanied by the certificate cannot limit the scope of the assessment to be made
pursuant to the double control, by the court of the Member State in which
enforcement is sought, once it examines the ground for challenge mentioned in
Article 34(2) of Regulation No 44/2001.
...
36. Next, ... since the court or authority competent to issue that certificate is not
necessarily the same as that which gave the judgment whose enforcement is sought,
that information can only have prima facie value. That follows also from the fact that
production of the certificate is not obligatory, since in its absence in accordance with
Article 55 of Regulation No 44/2001, the court in the Member State in which
enforcement is sought which has jurisdiction to issue the declaration of enforceability
may accept an equivalent document or, if it considers that it has sufficient
information, dispense with requesting its production.
37. Finally, ... it must be stated that, as is clear from the wording of Annex V to the
regulation, the information contained in the certificate is limited to ‘[d]ate of service
of the document instituting the proceedings where judgment was given in default of
appearance’, without mentioning any other information which helps to ascertain
whether the defendant was in a position to defend himself such as, in particular, the
means of service or the address where service was effected.
38. It follows that, when examining the ground for challenge set out in Article 34(2)
of Regulation No 44/2001, to which Article 45(1) thereof refers, the court of the
Member State in which enforcement is sought has jurisdiction to carry out an
independent assessment of all the evidence and thereby ascertain, where necessary,
whether that evidence is consistent with the information in the certificate, for the
purpose of establishing, first, whether the defendant in default of appearance was
served with the document instituting proceedings and, second, if service was effected
in sufficient time and in such a way as to enable him to arrange for his defence.
...
43. In that connection, the Court has already held that it is apparent from recitals 16
to 18 in the preamble to Regulation No 44/2001 that the system of appeals for which it
provides against the recognition or enforcement of a judgment aims to establish a fair
balance between, on the one hand, mutual trust in the administration of justice in the
Union, and, on the other, respect for the rights of the defence, which means that the
defendant should, where necessary, be able to appeal in an adversarial procedure
against the declaration of enforceability if he considers one of the grounds for
non-enforcement to be present (see, to that effect, Case C-420/07 Apostolides [2009]
ECR I-3571, paragraph 73).
...
28 AVOTIŅŠ v. LATVIA JUDGMENT
46. Having regard to all of the foregoing considerations, the answer to the first
question is that Article 34(2) of Regulation No 44/2001, to which Article 45(1)
thereof refers, read in conjunction with recitals 16 and 17 in the preamble, must be
interpreted as meaning that, where the defendant brings an action against the
declaration of enforceability of a judgment given in default of appearance in the
Member State of origin which is accompanied by the certificate, claiming that he has
not been served with the document instituting the proceedings, the court of the
Member State in which enforcement is sought hearing the action has jurisdiction to
verify that the information in that certificate is consistent with the evidence.”
61. In the case of Apostolides v Orams (Case C-420/07, judgment of
28 April 2009, ECR I-3571), meanwhile, the CJEU stated:
“55. As a preliminary point, it should be recalled that Article 34 of Regulation
No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the
attainment of one of the fundamental objectives of that regulation... With regard, more
specifically, to the public-policy clause in Article 34(1) of the regulation, it may be
relied on only in exceptional cases ...
...
73. ... [I]t is apparent from recitals 16 to 18 in the preamble to Regulation
No 44/2001 that the system of appeals for which it provides against the recognition or
enforcement of a judgment aims to establish a fair balance between, on the one hand,
mutual trust in the administration of justice in the Union, which justifies judgments
given in a Member State being, as a rule, recognised and declared enforceable
automatically in another Member State and, on the other hand, respect for the rights of
the defence, which means that the defendant should, where necessary, be able to
appeal in an adversarial procedure against the declaration of enforceability if he
considers one of the grounds for non-enforcement to be present.
74. The Court has had occasion, in Case C-283/05 ASML [2006] ECR I-12041, to
make clear the differences between Article 34(2) of Regulation No 44/2001 and
Article 27(2) of the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters ...
75. Article 34(2) of Regulation No 44/2001, unlike Article 27(2) of the Convention,
does not necessarily require the document which instituted the proceedings to be duly
served, but does require that the rights of the defence are effectively respected ...
76. Under Articles 34(2) and 45(1) of Regulation No 44/2001, the recognition or
enforcement of a default judgment must be refused, if there is an appeal, if the
defendant was not served with the document which instituted the proceedings or with
an equivalent document in sufficient time and in such a way as to enable him to
arrange for his defence, unless the defendant failed to commence proceedings to
challenge that judgment before the courts of the Member State of origin when it was
possible for him to do so.
77. It is clear from the wording of those provisions that a default judgment given on
the basis of a document instituting proceedings which was not served on the defendant
in sufficient time and in such a way as to enable him to arrange for his defence must
be recognised if he did not take the initiative to appeal against that judgment when it
was possible for him to do so.
...
80. In the light of the foregoing, the answer to the ... question [referred for a
preliminary ruling] is that the recognition or enforcement of a default judgment cannot
AVOTIŅŠ v. LATVIA JUDGMENT 29
be refused under Article 34(2) of Regulation No 44/2001 where the defendant was
able to commence proceedings to challenge the default judgment and those
proceedings enabled him to argue that he had not been served with the document
which instituted the proceedings or with the equivalent document in sufficient time
and in such a way as to enable him to arrange for his defence.”
2. Regulation No 1215/2012 (Brussels I bis): new recast version
62. The recast version of the Brussels I Regulation (known as “Brussels
I bis”), introduced by Regulation (EU) No 1215/2012 of the European
Parliament and of the Council of 12 December 2012 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
(recast), entered into force on 10 January 2015.
63. Article 39 of the new version abolished the declaration of
enforceability (exequatur) procedure and established the principle of
automatic enforceability of judgments given in another Member State. It
provides as follows:
“A judgment given in a Member State which is enforceable in that Member State
shall be enforceable in the other Member States without any declaration of
enforceability being required.”
64. However, Article 45(1) of the new version reiterates the terms of
Article 34(2) of the Brussels I Regulation:
“On the application of any interested party, the recognition of a judgment shall be
refused:
(a) if such recognition is manifestly contrary to public policy (ordre public) in the
Member State addressed;
(b) where the judgment was given in default of appearance, if the defendant was not
served with the document which instituted the proceedings or with an equivalent
document in sufficient time and in such a way as to enable him to arrange for his
defence, unless the defendant failed to commence proceedings to challenge the
judgment when it was possible for him to do so;
...”
C. Provisions concerning service of judicial documents
65. Prior to 1 May 2004, the date of accession of Cyprus and Latvia to
the European Union, the service of judicial documents between the two
countries was governed by the Hague Convention of 15 November 1965 on
the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, which was ratified both by Cyprus (where it entered
into force on 1 June 1983) and by Latvia (where it entered into force on
1 November 1995). This Convention applies in all cases where a judicial or
extrajudicial document is to be transmitted for service abroad, except where
the address of the person to be served with the document is not known.
30 AVOTIŅŠ v. LATVIA JUDGMENT
66. Since the accession of Cyprus and Latvia to the European Union on
1 May 2004, the service of judicial documents has been governed by the EC
Regulation on the service in the Member States of judicial and extrajudicial
documents in civil or commercial matters. The first version of this
Regulation (Council Regulation (EC) No 1348/2000 of 29 May 2000) was
repealed and replaced on 30 December 2007 by a new version (Regulation
(EC) No 1393/2007 of the European Parliament and of the Council of
13 November 2007).
III. RELEVANT LAW OF THE RESPONDENT STATE
67. At the material time the relevant sections of the Latvian Civil
Procedure Law (Civilprocesa likums) read as follows:
Section 8(1)
“The court shall establish the circumstances of the case by assessing evidence
obtained in accordance with the law.”
Section 9
“1. The parties shall have equal procedural rights.
2. The court shall ensure that the parties are able to exercise on an equal footing the
rights conferred on them for the defence of their interests.”
Section 230(1)
“In the decision [lēmums; not ruling on the merits] the court or judge shall indicate:
...
(7) the detailed arrangements and time-limits for lodging an appeal against the
decision.”
Section 637(2)
“Recognition of a foreign judgment shall be refused only if one of the following
grounds for non-recognition exists:
...
(2) the foreign judgment has not become enforceable in accordance with the law;
(3) the defendant has been unable to defend his or her rights, particularly where
judgment was given in default and the defendant was not duly and promptly
summoned to appear before the court, unless he or she had the opportunity to appeal
against the judgment and did not do so;
...
(6) such recognition would be contrary to Latvian public policy [sabiedriskā
iekārta];
...”
AVOTIŅŠ v. LATVIA JUDGMENT 31
Section 644
“1. After it has been recognised, a foreign judgment which is enforceable in the
State in which it was given shall be enforced in accordance with the present Law.
2. With regard to the rules on the enforcement of judgments laid down by Council
Regulation No 44/2001 ..., the provisions of [this] Chapter ... concerning recognition
of judgments given by foreign courts shall apply in so far as [Regulation No 44/2001]
so provides.”
IV. RELEVANT ELEMENTS OF CYPRIOT LAW
68. In accordance with the relevant provisions of Cypriot law furnished
by the Cypriot Government (see paragraph 10 above), a defendant against
whom judgment has been given in default may apply to have the judgment
set aside (Order 17, Rule 10 of the Civil Procedure Rules). The lodging of
such an application is not subject to any time-limit; however, the defendant
must provide a reasonable explanation for his or her failure to appear.
Hence, according to the case-law of the Cypriot courts, a defendant may
lodge an application to set aside in two sets of circumstances:
(a) where the defendant was not duly summoned to appear before the
court which gave judgment. In such cases the judge is required to set aside
the judgment given in default; he or she has no discretion to decide
otherwise;
(b) where the defendant was duly summoned but produces an affidavit
putting forward an arguable case and explaining why he did not appear (for
example, because he did not know about the proceedings, he had instructed
a lawyer to appear on his behalf but the lawyer failed to do so, or he made
an honest and reasonable mistake as to the deadline for appearing before the
court). In such cases the court may grant the application to set aside but is
not required to do so (Supreme Court judgment in the case of Phylactou
v. Michael (1982, 1 A.A.D., 204).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
69. The applicant claimed to be the victim of a violation of Article 6 § 1
of the Convention. He complained that in issuing a declaration of
enforceability in respect of the judgment of the Limassol District Court of
24 May 2004, which in his view was clearly defective as it had been given
in breach of his defence rights, the Senate of the Latvian Supreme Court had
infringed his right to a fair hearing. Article 6 § 1, in so far as relevant to the
present case, provides:
32 AVOTIŅŠ v. LATVIA JUDGMENT
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
A. Chamber judgment
70. In its judgment the Chamber began by observing that, since the
complaint against Cyprus had been declared inadmissible as being out of
time (see paragraph 4 above), the Court did not have jurisdiction to
determine whether the Limassol District Court had complied with
Article 6 § 1 of the Convention. The scope of the case was therefore
confined to ascertaining whether, in ordering the enforcement of the Cypriot
judgment in Latvia, the Latvian courts had observed the fundamental
principles of a fair hearing within the meaning of that provision. In that
connection the Chamber found that the observance by the State of its legal
obligations arising out of membership of the European Union was a matter
of general interest and that this also applied to the implementation of the
Brussels I Regulation, based on the principle of “mutual trust in the
administration of justice”. The Latvian courts had therefore had a duty to
ensure the recognition and rapid and effective enforcement of the Cypriot
judgment in Latvia. The Chamber further observed that the protection of
fundamental rights afforded by the European Union was in principle
equivalent to that for which the Convention provided (see Bosphorus Hava
Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98,
§§ 160-65, ECHR 2005-VI).
71. The Chamber further considered that, having borrowed a sum of
money from a Cypriot company and signed an acknowledgment of debt
deed governed by Cypriot law and subject to the jurisdiction of the Cypriot
courts, the applicant could have been expected to familiarise himself with
the legal consequences of any failure on his part to repay the debt and with
the manner in which any proceedings would be conducted in Cyprus. In the
Chamber’s view, the onus had been on the applicant to demonstrate that he
had had no effective remedy in the Cypriot courts; however, he had not
demonstrated this either before the Senate of the Latvian Supreme Court or
before the Strasbourg Court. The Chamber therefore concluded that in
dismissing the applicant’s arguments simply by reference to the fact that he
had not appealed against the Cypriot judgment, the Supreme Court had
taken sufficient account of the rights protected by Article 6 § 1 of the
Convention. There had therefore been no violation of that provision in the
present case.
72. Lastly, the Chamber did not find any appearance of a violation with
regard to the applicant’s other allegations under Article 6 § 1.
AVOTIŅŠ v. LATVIA JUDGMENT 33
B. The parties’ submissions
1. The applicant
73. In his request for referral to the Grand Chamber and his oral
pleadings at the hearing, the applicant put forward the following arguments.
He submitted at the outset that the presumption of equivalent protection (the
“Bosphorus presumption”) was inapplicable in the present case for two
reasons. Firstly, under the Brussels I Regulation the higher courts in Latvia
(the Regional Court and the Senate of the Supreme Court) had not been
obliged automatically to recognise the Cypriot judgment. On the contrary,
Articles 34 and 35 of the Regulation had afforded them a broad margin of
discretion to check that the applicant’s fundamental procedural rights had
been respected in the State of origin and to decide whether or not the
judgment should be enforced in Latvia. To that extent, the Latvian courts
had therefore retained full responsibility for ensuring compliance with the
requirements of Article 6 § 1 of the Convention. Moreover, in declaring the
judgment to be enforceable, the Senate of the Supreme Court had clearly
breached the terms of Article 34(2) of the Regulation as interpreted by the
CJEU. In that connection the applicant referred to the CJEU’s judgment in
the Trade Agency case (see paragraph 60 above) and to the subsequent
rulings of the Senate of the Latvian Supreme Court. In two cases, the latter
had carefully examined whether the defendants had been duly and promptly
summoned to appear before the courts in the State of origin. In both cases,
the defendants had not attempted to appeal against the judgments in
question and the Senate had not criticised them on that account.
74. Secondly, the present case was to be distinguished from the
Bosphorus case in so far as, in this case, the Senate of the Supreme Court
had failed in its duty to consider requesting a preliminary ruling from the
CJEU. The applicant acknowledged that he had never requested that such a
ruling be sought, but argued that he had had no opportunity to do so since
only the other party had been allowed to make submissions on the merits of
the case at the hearing of 31 January 2007. Hence, the Latvian courts had
not made use of the review mechanisms existing in the European Union
legal system. In the applicant’s view, if the Latvian Supreme Court had
requested a preliminary ruling from the CJEU, the latter would most likely
have indicated that it was empowered to verify whether the applicant had
been duly informed of the proceedings before the Cypriot court and whether
it had been, or still was, open to him to appeal against the Cypriot judgment.
The applicant referred in that connection to paragraph 38 of the Trade
Agency judgment, cited at paragraph 60 above. In his view, the present case
was therefore more akin to the case of Michaud v. France (no. 12323/11,
§§ 112-115, ECHR 2012), in which the Court had found that the Bosphorus
presumption did not apply, for several reasons including the one just cited.
34 AVOTIŅŠ v. LATVIA JUDGMENT
75. The applicant acknowledged that the observance by the State of its
legal obligations arising out of membership of the European Union was a
matter of general interest. However, it would be erroneous and inconsistent
with the Court’s settled case-law to find, as the Chamber had done in its
judgment, that this reason alone constituted a legitimate aim sufficient to
justify restricting the rights guaranteed by the Convention. In the Court’s
case-law, that objective had never been regarded as sufficient justification
for interference with fundamental rights unless it was accompanied by other
legitimate aims such as the prevention of crime (the applicant referred to
Michaud, cited above) or the protection of the rights of others (he referred to
Povse v. Austria (dec.), no. 3890/11, 18 June 2013). In the applicant’s
submission, since the Brussels I Regulation had not required the Latvian
authorities to enforce the Cypriot judgment automatically and
unconditionally, the interference in question had not pursued any legitimate
aim.
76. In the applicant’s view, his situation was fundamentally different
from that in the Orams case, which had been the subject of proceedings
before both the CJEU (see paragraph 61 above) and the European Court of
Human Rights (see Orams v. Cyprus (dec.), no. 27841/07, 10 June 2010). In
that case, the applicants had been able to appeal against the impugned
judgment. Their lawyer had been informed of the hearing before the Cypriot
Supreme Court at which their appeal was to be examined and had actually
appeared and pleaded his clients’ case. In Strasbourg, the applicants had
complained only of the lack of written notice and the Court had found that
the guarantees of Article 6 § 1 did not extend to requiring written notice to
be given. In the present case, by contrast, the applicant had never been
served with the document instituting the proceedings.
77. The applicant further submitted that, having repaid his contractual
debt of his own free will, he could not have expected that proceedings
would be brought against him in Cyprus. The Senate of the Latvian
Supreme Court should have satisfied itself that the possibility of appealing
against the impugned judgment in Cyprus existed in law and in fact, instead
of placing the entire burden of proof on the applicant. In his submission, he
should not be criticised for not attempting to appeal against the Cypriot
judgment, for three reasons. Firstly, the judgment itself had contained no
reference to the available judicial remedies. Secondly, placing such a burden
of proof on him ran counter to the approach taken by the CJEU in the ASML
judgment, according to which “it [was] ‘possible’ for a defendant to bring
proceedings to challenge a default judgment against him only if he [was] in
fact acquainted with its contents, because it was served on him in sufficient
time to enable him to arrange for his defence before the courts of the State
in which the judgment was given” (see paragraph 58 above). Thirdly,
according to the information supplied by the Cypriot Government, the
possibility of an appeal lodged out of time being allowed in Cyprus was
highly speculative and was a matter for the court’s discretion
AVOTIŅŠ v. LATVIA JUDGMENT 35
(see paragraph 68 above). Moreover, since the Riga Regional Court
judgment of 2 October 2006 refusing to declare the judgment enforceable
had been in his favour (see paragraph 32 above), the applicant had had no
reason to attempt to lodge an appeal in Cyprus at that point.
78. In view of all the above considerations the applicant submitted that,
in declaring the Cypriot judgment enforceable and refusing to examine his
argument that he had not been duly notified of the examination of the case
by the Cypriot court, the Latvian courts had failed to observe the guarantees
of a fair hearing, in breach of Article 6 § 1 of the Convention.
79. Lastly – still from the standpoint of Article 6 § 1 – the applicant
criticised the way in which the hearing of 31 January 2007 before the Senate
of the Supreme Court had been conducted. He complained in particular that
the principle of equality of arms had not been respected and that the Senate
had refused to provide him with a copy of the record of the hearing.
2. The respondent Government
80. Unlike the applicant, the respondent Government were of the view
that the Bosphorus presumption applied in the present case. Firstly, they
submitted that the grounds for non-recognition provided for in Article 34(2)
of the Brussels I Regulation could not be interpreted as granting the court in
the Member State in which enforcement was sought a margin of discretion,
as the grounds for refusing recognition were clearly set out in the text of that
Article. Referring to the explanatory memorandum concerning the proposal
for a Regulation (see paragraph 56 above) and to the CJEU’s judgment in
the case of Apostolides v. Orams (see paragraph 60 above), the respondent
Government submitted that the legal form of a regulation had been
expressly chosen by the European Union institutions in order not to leave
any discretion to the Member States. The provisions of the Regulation were
autonomous and could not be interpreted or applied in the light of domestic
law, and Article 34 had to be interpreted strictly since it constituted an
obstacle to the attainment of one of the fundamental objectives of the
Regulation as a whole. Furthermore, the court with jurisdiction to rule on
the enforcement of the judgment in the Member State in question did not
have any authority to review the possible grounds for non-enforcement on
its own initiative. Consequently, the Senate of the Supreme Court had not
enjoyed any discretion in deciding to recognise and enforce the Limassol
District Court judgment. In so doing, it had simply complied with its strict
obligations arising out of Latvia’s membership of the European Union.
81. Secondly, the respondent Government asserted that the sole fact that
the Senate of the Supreme Court had not made full use of the review
mechanism provided for by EU law did not result in the rebuttal of the
Bosphorus presumption. In their submission, the application of that
presumption could not be made subject to a requirement for the domestic
courts to request a preliminary ruling from the CJEU in all cases without
36 AVOTIŅŠ v. LATVIA JUDGMENT
exception, as this would run counter to the spirit of cooperation that must
govern relations between the domestic courts and the CJEU. The domestic
courts referred a question for a preliminary ruling only where they had
doubts as to the correct interpretation or application of EU legislation. They
were not required to do so if they found that the question raised was not
relevant, that the provision in question had already been interpreted by the
CJEU or that the correct application of EU law was so obvious as to leave
no scope for reasonable doubt. That was precisely the situation in the
present case, as the CJEU’s existing case-law had been sufficiently explicit
with regard to the meaning and scope of the requirements of Article 34(2) of
the Brussels I Regulation. Moreover, if the applicant had considered it
necessary to obtain clarifications on that provision, he could have asked the
Senate of the Supreme Court to refer the matter to the CJEU for a
preliminary ruling. The fact that he had not done so was an indication that
he had considered such a move to serve no purpose.
82. The respondent Government added that, in rejecting the applicant’s
argument that he had not been duly informed of the proceedings on the sole
ground that he had not challenged the Cypriot judgment, the Senate of the
Latvian Supreme Court had acted in full conformity with Article 34(2) of
the Brussels I Regulation as interpreted by the CJEU. The applicant had at
no point alleged, still less proved, before the domestic courts or the
Strasbourg Court that he had at least attempted to institute appeal
proceedings in Cyprus. Moreover, it was reasonable to consider that in view
of the six-month period that had elapsed between June 2006 (when the
applicant had been apprised of the content of the Cypriot judgment) and
January 2007 (when the Senate of the Supreme Court had examined the
case), the applicant had had sufficient time to lodge an appeal in Cyprus. On
that point the respondent Government referred to the Cypriot Government’s
observations, from which it was clear that such a remedy had been available
in theory and in practice and had not been subject to a strict time-limit (see
paragraph 68 above). They submitted that Article 34(2) of the Brussels I
Regulation was based on the premise that any defects in a judgment given in
default should be remedied in the country of origin. If the applicant had
lodged an appeal with the Cypriot courts, the Latvian Supreme Court could
have stayed or adjourned the enforcement proceedings in accordance with
Articles 37(1) and 46(1) of the Regulation. In omitting, without any real
justification, to lodge such an appeal, the applicant had effectively
prevented the Latvian courts from refusing enforcement of the judgment.
83. Observing that the applicant had been an investment consultant, the
respondent Government further submitted that he should have known that
failure to repay his debt would result in proceedings in the Cypriot courts
and that the summons would be sent to the address indicated in the
acknowledgment of debt deed. As the applicant had not provided his true
address to the company with which he had entered into the loan agreement,
his conduct might possibly be characterised as an abuse of rights for the
AVOTIŅŠ v. LATVIA JUDGMENT 37
purposes of Article 17 of the Convention. Furthermore, given that the
applicant had consented to the application of Cypriot law, he must be
assumed to have been very familiar with the legal system in Cyprus,
including the available remedies. Consequently, his argument that the
Cypriot judgment had contained no references to the available judicial
remedies lacked any relevance, bearing in mind that neither the Brussels I
Regulation, nor Cypriot law, nor Article 6 § 1 of the Convention required
the courts to insert such a reference in their judgments. Hence, the situation
of which the applicant complained before the Court had resulted essentially
from his own conduct.
84. The respondent Government submitted that one of the European
Union’s objectives was to secure the effective functioning of the common
market. Attainment of and compliance with that objective, and mutual trust
in the administration of justice, constituted a general interest sufficient to
justify certain restrictions on the right to a fair hearing, especially since the
fairness of proceedings was also a fundamental principle of EU law
recognised by the CJEU. Hence, the system established by the Brussels I
Regulation respected the right to a fair hearing. Accordingly, and in the light
of the Bosphorus presumption, the respondent Government requested the
Court to find that the Senate of the Supreme Court had taken sufficient
account of the applicant’s rights under Article 6 § 1 of the Convention.
85. Lastly, the respondent Government rejected the applicant’s claims
that the hearing of 31 January 2007 had been conducted unfairly. In their
submission, it was clear from the Supreme Court judgment that the
applicant’s lawyer had had an opportunity to make oral pleadings at the
hearing. The reason why no record had been drawn up was that this was not
required under domestic law in such a case. Furthermore, Article 6 § 1 did
not require the domestic courts to produce a written record of every hearing.
C. Observations of the third-party interveners
1. The Estonian Government
86. The Estonian Government explained the ratio legis behind
Article 34 of the Brussels I Regulation (as applicable at the material time).
This Article had been very carefully drafted and struck a balance between
respect for the rights of the defence and the need to ensure, by simplifying
the formalities, rapid and straightforward recognition and enforcement in
each Member State of judgments in civil and commercial matters emanating
from another Member State. The manner in which the provision in question
was drafted left no discretion to the courts in the Member State in which
enforcement was sought, especially since the abundant and clear case-law of
the CJEU provided them with precise guidelines as to its application. For
that reason, the application of the Bosphorus presumption was not subject to
a requirement for the courts of the Member States systematically to request
38 AVOTIŅŠ v. LATVIA JUDGMENT
a preliminary ruling from the CJEU whenever Article 34(2) of the Brussels I
Regulation was applicable.
87. The Estonian Government attached considerable weight to the fact
that the two States concerned, Cyprus and Latvia, were Parties to the
Convention and subject to the Court’s jurisdiction. Accordingly, unlike in
cases where the judgment to be enforced emanated from a third country, the
court from which the declaration of enforceability was sought did not have
to satisfy itself that the proceedings in the State of origin had generally
conformed to the requirements of Article 6 § 1 of the Convention. Its review
should be confined to the formalities of the enforcement proceedings, as it
remained open to the defendant to assert his or her Article 6 § 1 rights in the
courts of the State of origin.
88. In the Estonian Government’s submission, where defendants against
whom judgment had been given in default did not lodge an appeal against
the judgment in question in the State of origin after they had been made
aware of it, and failed to demonstrate that such a remedy would be
impossible or ineffective, the court in the State in which enforcement was
sought had no discretion, in examining an appeal in the context of the
enforcement proceedings, to refuse the other party’s request for recognition
and enforcement. In view of the overall rationale behind Article 34(2) of the
Brussels I Regulation and the general principles of civil procedure, it was
reasonable for the burden of proof in that regard to be placed on the
defendant. Article 34(2) of the Brussels I Regulation afforded individuals a
standard of protection equivalent to that provided by Article 6 § 1 of the
Convention for the purposes of the Bosphorus case-law, and thus required
the State addressed to enforce the judgment as swiftly as possible.
2. The European Commission
89. The European Commission submitted that the presumption of
equivalent protection, known as the Bosphorus presumption, was applicable
in the present case. It confirmed that under Article 45(1) of the Brussels I
Regulation the court in which the declaration of enforceability was
requested could refuse the request only on one of the grounds set forth in
Articles 34 and 35 of the Regulation. Hence, the courts of the Member
States could not exercise any discretion in ordering the enforcement of a
judgment given in another Member State. Such an act fell strictly within the
scope of the international legal obligations of the Member State in which
enforcement was sought, arising out of its membership of the European
Union.
90. As to the fact that in the present case, as in the case of Michaud
(cited above), the domestic courts had not sought a preliminary ruling from
the CJEU, the European Commission submitted that there was nevertheless
one significant difference between the two cases. In this case, unlike in
Michaud, it could not be said that the “full potential of the [preliminary
AVOTIŅŠ v. LATVIA JUDGMENT 39
ruling] procedure” had not been deployed, given that the applicant had not
asked the courts in the respondent State to refer the question for a
preliminary ruling or even raised any doubts as to the compatibility of the
relevant provisions of European Union law with the Convention right whose
violation he now alleged before the Court. The Commission further noted
that a request for a preliminary ruling did not constitute a remedy to be
exhausted for the purposes of Article 35 § 1 of the Convention. In general
terms, the Commission submitted that the application of the Bosphorus
presumption could not be made subject to a requirement for the courts of the
EU Member States to seek a preliminary ruling from the CJEU whenever
they were called on to apply the provisions of EU law. Even assuming that
EU law imposed an obligation on the domestic court concerned to seek a
preliminary ruling, failure to comply with that obligation should not be
“penalised” by a refusal on the part of the European Court of Human Rights
to apply the presumption of equivalent protection.
91. In the European Commission’s view, the recognition and
enforcement machinery established by the Brussels I Regulation was
compatible in itself with the right to a fair hearing protected by Article 6 § 1
of the Convention. Article 34(2) of the Regulation had to be read together
with the other relevant provisions of the Regulation and with the
Regulations on the service in the Member States of judicial and extrajudicial
documents in civil or commercial matters (see paragraph 66 above). The
combined effect of those provisions meant that the right to a fair hearing
was guaranteed not only during the stage of recognition and enforcement of
a judgment but also earlier, at the stage of the court proceedings in the
Member State of origin. Recognition and enforcement did not depend on
whether the document instituting the proceedings had been served in
accordance with the formal requirements, but rather on a specific
examination of whether the defendant’s right to adversarial process had in
fact been respected. The Commission further observed that Article 34(1) of
the Regulation provided for recognition and enforcement to be refused
where “recognition [was] manifestly contrary to public policy in the
Member State in which recognition [was] sought”. In the Commission’s
view, this provision afforded an even greater degree of protection of
fundamental rights as it did not require an appeal to be lodged in the State of
origin.
92. The Commission submitted that in interpreting the conditions laid
down in Article 34(2) of the Brussels I Regulation, the CJEU had been
concerned to protect the right of defendants in default of appearance to a
fair hearing. In particular, in its judgment in ASML (cited at paragraph 58
above), it had held that a defendant in default of appearance could be
deemed to have been in a position to bring proceedings to challenge a
judgment given against him only if he was in fact acquainted with its
contents, which presupposed that it had been served on him. Simply being
aware of the existence of a judgment was not sufficient in that regard.
40 AVOTIŅŠ v. LATVIA JUDGMENT
Hence, the existence or otherwise of remedies in the country of origin had to
be assessed with reference to the point at which the defendant had actually
been apprised of the content of the judgment as distinct from merely
learning of its existence. It was true that Article 43 of the Brussels I
Regulation did not require the court in which the declaration of
enforceability was requested to automatically examine whether the
circumstances enumerated in Article 34(2) applied, including the possibility
of lodging an appeal in the State of origin. However, in the Commission’s
view, this had no bearing on compliance with Article 6 § 1 of the
Convention, since in principle neither that provision nor European Union
law governed the admissibility of evidence and its assessment by the
domestic courts.
93. In sum, the European Commission submitted that, far from
providing for “automatic” recognition and enforcement of judgments given
in another Member State, the Brussels I Regulation made recognition and
enforcement contingent on respect for the right to adversarial process and
hence for the right to a fair hearing within the meaning of Article 6 § 1 of
the Convention.
3. The AIRE Centre
94. The AIRE Centre stressed the need to safeguard the right to a fair
hearing in the context of the procedure for the recognition and enforcement
of judgments within the European Union, and the duty of the domestic
courts to secure that right. A court hearing an appeal against the recognition
and enforcement of a foreign judgment could not confine its attention to
verifying compliance with the formal requirements of Article 34(2) of the
Brussels I Regulation or (after 10 June 2015) those of Article 45(1)(a) of the
Brussels I bis Regulation. On the contrary, where the rights of the defence
had been breached in the State of origin, the court could and should make
use of Article 34(1) of the Brussels I Regulation or Article 45(1) of the
Brussels I bis Regulation, according to which the request for recognition
and enforcement had to be refused if “recognition [was] manifestly contrary
to public policy in the Member State in which recognition [was] sought”. In
the AIRE Centre’s submission, if the court failed to do so it would be
committing a manifest error of interpretation of European Union law. In
other words, the court hearing the appeal had discretion to refuse
enforcement of the judgment if it had been given in breach of the rights of
the defence.
95. The AIRE Centre further submitted that the Court should review its
current approach to the Bosphorus presumption, especially in the light of
the stance adopted by the CJEU in the Melloni judgment and in Opinion
2/13 (see paragraphs 47 and 49 above). It maintained in particular that the
conclusions of Opinion 2/13, and especially of paragraph 192, were
AVOTIŅŠ v. LATVIA JUDGMENT 41
radically at odds with protection of the human rights guaranteed by the
Convention.
D. The Court’s assessment
1. Preliminary considerations
96. The Court reiterates at the outset that, as regards disputes whose
outcome is decisive for civil rights, Article 6 § 1 of the Convention is
applicable to the execution of foreign final judgments (see McDonald
v. France (dec.), no. 18648/04, 29 April 2008; Saccoccia v. Austria,
no. 69917/01, §§ 60-62, 18 December 2008; and Sholokhov v. Armenia and
the Republic of Moldova, no. 40358/05, § 66, 31 July 2012). It is not
disputed that the Limassol District Court judgment of 24 May 2004,
ordering the applicant to pay a contractual debt together with the
corresponding interest and the costs and expenses in respect of the
proceedings, concerned the substance of a “civil” obligation on the part of
the applicant. Article 6 § 1 is therefore applicable in the present case.
97. The judgment of 24 May 2004 was given by a Cypriot court and the
Latvian courts ordered its enforcement in Latvia. Consequently, the
applicant’s complaints under Article 6 of the Convention as set out in his
application concerned both the Cypriot proceedings and those in Latvia.
With regard to the former, the applicant complained that his defence rights
had been infringed, while in the case of the latter he complained that the
courts had validated the proceedings in Cyprus by ordering the recognition
and enforcement of the judgment. However, the Court declared the
complaint against Cyprus inadmissible as being out of time (partial decision
of 3 March 2010, see paragraph 4 above). At the present stage of the
proceedings the application therefore concerns Latvia alone. Accordingly,
the Court does not have jurisdiction ratione personae to give a formal ruling
on whether the Limassol District Court complied with the requirements of
Article 6 § 1. However, it must ascertain whether, in declaring the Cypriot
judgment to be enforceable, the Latvian courts acted in accordance with that
provision (see, mutatis mutandis, Pellegrini v. Italy, no. 30882/96, §§ 40-41,
ECHR 2001-VIII). In doing so the Court cannot but have regard to the
relevant aspects of the proceedings in Cyprus.
98. The Court considers that a decision to enforce a foreign judgment
cannot be regarded as compatible with the requirements of Article 6 § 1 of
the Convention if it was taken without the unsuccessful party having been
afforded any opportunity of effectively asserting a complaint as to the
unfairness of the proceedings leading to that judgment, either in the State of
origin or in the State addressed. In their third-party submissions the
Estonian Government stressed the importance of the distinction between the
enforcement of a judgment emanating from another Contracting Party to the
Convention and that of a judgment given by the authorities of a State that
42 AVOTIŅŠ v. LATVIA JUDGMENT
was not a Party to the Convention. In the first case, where there was a
presumption that the parties could secure protection of their Convention
rights in the country of origin of the judgment, the review by the court in the
State addressed should be more limited than in the second case (see
paragraph 87 above). The Court notes that it has never previously been
called upon to examine observance of the guarantees of a fair hearing in the
context of mutual recognition based on European Union law. However, it
has always applied the general principle whereby a court examining a
request for recognition and enforcement of a foreign judgment cannot grant
the request without first conducting some measure of review of that
judgment in the light of the guarantees of a fair hearing; the intensity of that
review may vary depending on the nature of the case (see, mutatis mutandis,
Drozd and Janousek v. France and Spain, 26 June 1992, § 110, Series A
no. 240, and Pellegrini, cited above, § 40). In the present case the Court
must therefore determine, in the light of the relevant circumstances of the
case, whether the review conducted by the Senate of the Latvian Supreme
Court was sufficient for the purposes of Article 6 § 1.
99. The Court emphasises that, in accordance with Article 19 of the
Convention, its sole duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In particular, it is
not its function to deal with errors of fact or law allegedly made by a
national court in assessing the evidence before it, unless and in so far as
they may have infringed rights and freedoms protected by the Convention
(see, among many other authorities, García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I). The Court cannot itself assess the facts
which have led a national court to adopt one decision rather than another;
otherwise, it would be acting as a court of fourth instance and would
disregard the limits imposed on its action (see Centro Europa 7 S.r.l. and
Di Stefano v. Italy [GC], no. 38433/09, § 197, ECHR 2012). Accordingly, it
does not have jurisdiction to rule on issues of fact raised before it such as
the applicant’s claim that he had repaid his debt before the proceedings were
instituted against him (see paragraphs 15 and 77 above).
100. The Court further notes that the recognition and enforcement of the
Cypriot judgment took place in accordance with Council Regulation (EC)
No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (known as the
Brussels I Regulation), which was applicable at the relevant time. The
applicant alleged that the Senate of the Supreme Court had breached
Article 34(2) of that Regulation and the corresponding provision of the
Latvian Civil Procedure Law. The Court reiterates that it is not competent to
rule formally on compliance with domestic law, other international treaties
or European Union law (see, for example, S.J. v. Luxembourg,
no. 34471/04, § 52, 4 March 2008, and Jeunesse v. the Netherlands [GC],
no. 12738/10, § 110, 3 October 2014). The task of interpreting and applying
the provisions of the Brussels I Regulation falls firstly to the CJEU, in the
AVOTIŅŠ v. LATVIA JUDGMENT 43
context of a request for a preliminary ruling, and secondly to the domestic
courts in their capacity as courts of the Union, that is to say, when they give
effect to the Regulation as interpreted by the CJEU. The jurisdiction of the
European Court of Human Rights is limited to reviewing compliance with
the requirements of the Convention, in this case with Article 6 § 1.
Consequently, in the absence of any arbitrariness which would in itself raise
an issue under Article 6 § 1, it is not for the Court to make a judgment as to
whether the Senate of the Latvian Supreme Court correctly applied
Article 34(2) of the Brussels I Regulation or any other provision of
European Union law.
2. The presumption of equivalent protection (the Bosphorus
presumption)
(a) Scope of the presumption of equivalent protection
101. The Court reiterates that, even when applying European Union law,
the Contracting States remain bound by the obligations they freely entered
into on acceding to the Convention. However, those obligations must be
assessed in the light of the presumption established by the Court in the
Bosphorus judgment and developed in Michaud (both cited above; see also
M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 338, ECHR 2011, and
Povse, cited above, § 76). In Michaud, the Court summarised its case-law
on this presumption in the following terms:
“102. The Court reiterates that absolving the Contracting States completely from
their Convention responsibility where they were simply complying with their
obligations as members of an international organisation to which they had transferred
a part of their sovereignty would be incompatible with the purpose and object of the
Convention: the guarantees of the Convention could be limited or excluded at will,
thereby depriving it of its peremptory character and undermining the practical and
effective nature of its safeguards. In other words, the States remain responsible under
the Convention for the measures they take to comply with their international legal
obligations, even when those obligations stem from their membership of an
international organisation to which they have transferred part of their sovereignty (see
Bosphorus, cited above, § 154).
103. It is true, however, that the Court has also held that action taken in compliance
with such obligations is justified where the relevant organisation protects fundamental
rights, as regards both the substantive guarantees offered and the mechanisms
controlling their observance, in a manner which can be considered at least equivalent
– that is to say not identical but ‘comparable’ – to that for which the Convention
provides (it being understood that any such finding of ‘equivalence’ could not be final
and would be susceptible to review in the light of any relevant change in fundamental
rights protection). If such equivalent protection is considered to be provided by the
organisation, the presumption will be that a State has not departed from the
requirements of the Convention when it does no more than implement legal
obligations flowing from its membership of the organisation.
However, a State will be fully responsible under the Convention for all acts falling
outside its strict international legal obligations, notably where it has exercised State
44 AVOTIŅŠ v. LATVIA JUDGMENT
discretion (see M.S.S. v. Belgium and Greece, cited above, § 338). In addition, any
such presumption can be rebutted if, in the circumstances of a particular case, it is
considered that the protection of Convention rights was manifestly deficient. In such
cases, the interest of international cooperation would be outweighed by the
Convention’s role as a ‘constitutional instrument of European public order’ in the
field of human rights (see Bosphorus, cited above, §§ 152-58, and also, among other
authorities, M.S.S. v. Belgium and Greece, cited above, §§ 338-40).
104. This presumption of equivalent protection is intended, in particular, to ensure
that a State Party is not faced with a dilemma when it is obliged to rely on the legal
obligations incumbent on it as a result of its membership of an international
organisation which is not party to the Convention and to which it has transferred part
of its sovereignty, in order to justify its actions or omissions arising from such
membership vis-à-vis the Convention. It also serves to determine in which cases the
Court may, in the interests of international cooperation, reduce the intensity of its
supervisory role, as conferred on it by Article 19 of the Convention, with regard to
observance by the States Parties of their engagements arising from the Convention. It
follows from these aims that the Court will accept such an arrangement only where
the rights and safeguards it protects are given protection comparable to that afforded
by the Court itself. Failing that, the State would escape all international review of the
compatibility of its actions with its Convention commitments.”
102. In the context of the former “first pillar” of the EU (see Bosphorus,
cited above, § 72), the Court held that the protection of fundamental rights
afforded by the legal system of the European Union was in principle
equivalent to that for which the Convention provided. In arriving at that
conclusion it found, firstly, that the European Union offered equivalent
protection of the substantive guarantees, observing in that connection that at
the relevant time respect for fundamental rights had already been a
condition of the lawfulness of Community acts and that the CJEU referred
extensively to Convention provisions and to Strasbourg case-law in carrying
out its assessment (see Bosphorus, cited above, § 159). This finding has
applied a fortiori since 1 December 2009, the date of entry into force of
Article 6 (amended) of the Treaty on European Union, which confers on the
Charter of Fundamental Rights of the European Union the same value as the
Treaties and gives fundamental rights, as guaranteed by the Convention and
as they result from the constitutional traditions common to the Member
States, the status of general principles of European Union law (see Michaud,
cited above, § 106).
103. The Court found the substantive protection afforded by EU law to
be equivalent taking into account the provisions of Article 52(3) of the
Charter of Fundamental Rights, according to which, in so far as the rights
contained in the Charter correspond to rights guaranteed by the Convention,
their meaning and scope are the same, without prejudice to the possibility
for EU law to provide more extensive protection (see Bosphorus, cited
above, § 80). In examining whether, in the case before it, it can still consider
that the protection afforded by EU law is equivalent to that for which the
Convention provides, the Court is especially mindful of the importance of
compliance with the rule laid down in Article 52(3) of the Charter of
AVOTIŅŠ v. LATVIA JUDGMENT 45
Fundamental Rights given that the entry into force of the Treaty of Lisbon
(see paragraph 37 above) conferred on the Charter the same legal value as
the Treaties.
104. Secondly, the Court has recognised that the mechanism provided
for by European Union law for supervising observance of fundamental
rights, in so far as its full potential has been deployed, also affords
protection comparable to that for which the Convention provides. On this
point, the Court has attached considerable importance to the role and powers
of the CJEU, despite the fact that individual access to that court is far more
limited than access to the Strasbourg Court under Article 34 of the
Convention (see the judgments in Bosphorus, §§ 160-65, and Michaud,
§§ 106-11, both cited above).
(b) Application of the presumption of equivalent protection in the present case
105. The Court reiterates that the application of the presumption of
equivalent protection in the legal system of the European Union is subject to
two conditions, which it set forth in the Michaud judgment, cited above.
These are the absence of any margin of manoeuvre on the part of the
domestic authorities and the deployment of the full potential of the
supervisory mechanism provided for by European Union law (ibid.,
§§ 113-15). The Court must therefore ascertain whether these two
conditions were satisfied in the present case.
106. With regard to the first condition, the Court notes at the outset that
the provision to which the Senate of the Supreme Court gave effect was
contained in a Regulation, which was directly applicable in the Member
States in its entirety, and not in a Directive, which would have been binding
on the State with regard to the result to be achieved but would have left it to
the State to choose the means and manner of achieving it (see, conversely,
Michaud, cited above, § 113). As to the precise provision applied in the
instant case, namely Article 34(2) of the Brussels I Regulation, the Court
notes that it allowed the refusal of recognition or enforcement of a foreign
judgment only within very precise limits and subject to certain
preconditions, namely that “the defendant [had] not [been] served with the
document which instituted the proceedings or with an equivalent document
in sufficient time and in such a way as to enable him to arrange for his
defence, unless the defendant [had] failed to commence proceedings to
challenge the judgment when it [had been] possible for him to do so”. It is
clear from the interpretation given by the CJEU in a fairly extensive body of
case-law (see paragraphs 57-61 above) that this provision did not confer any
discretion on the court from which the declaration of enforceability was
sought. The Court therefore concludes that the Senate of the Latvian
Supreme Court did not enjoy any margin of manoeuvre in this case.
107. The present case is therefore distinguishable from that of M.S.S.,
cited above. In that case, in examining the issue of Belgium’s responsibility
46 AVOTIŅŠ v. LATVIA JUDGMENT
under the Convention, the Court noted that, under the terms of the
applicable Regulation (the Dublin II Regulation), the Belgian State
authorities retained the discretionary power to decide whether or not to
make use of the “sovereignty” clause which allowed them to examine the
asylum application and to refrain from sending the applicant back to Greece
if they considered that the Greek authorities were likely not to fulfil their
obligations under the Convention (§§ 339-40). By contrast, Article 34(2) of
the Brussels I Regulation did not grant States any such discretionary powers
of assessment.
108. In its third-party submissions the AIRE Centre argued that the
Senate of the Latvian Supreme Court could and should have had recourse to
Article 34(1) of the Brussels I Regulation, according to which the request
for a declaration of enforceability had to be refused if “recognition [was]
manifestly contrary to public policy in the Member State in which
recognition [was] sought”. According to the AIRE Centre this provision
allowed the Latvian court a degree of discretion (see paragraph 94 above).
However, the arguments raised by the applicant before the Supreme Court
were confined to the application of paragraph 2 of Article 34. The Court
will therefore confine its analysis to the applicant’s complaints as raised
before the Supreme Court and in the context of the present proceedings. It
considers that it is not its task to determine whether another provision of the
Brussels I Regulation should have been applied.
109. As regards the second condition, namely the deployment of the full
potential of the supervisory mechanism provided for by European Union
law, the Court observes at the outset that in the Bosphorus judgment, cited
above, it recognised that, taken overall, the supervisory mechanisms put in
place within the European Union afforded a level of protection equivalent to
that for which the Convention mechanism provided (ibid., §§ 160-64).
Turning to the specific circumstances of the present case, it notes that the
Senate of the Supreme Court did not request a preliminary ruling from the
CJEU regarding the interpretation and application of Article 34(2) of the
Regulation. However, it considers that this second condition should be
applied without excessive formalism and taking into account the specific
features of the supervisory mechanism in question. It considers that it would
serve no useful purpose to make the implementation of the Bosphorus
presumption subject to a requirement for the domestic court to request a
ruling from the CJEU in all cases without exception, including those cases
where no genuine and serious issue arises with regard to the protection of
fundamental rights by EU law, or those in which the CJEU has already
stated precisely how the applicable provisions of EU law should be
interpreted in a manner compatible with fundamental rights.
110. The Court observes that, in a different context, it has held that
national courts against whose decisions no judicial remedy exists in national
law are obliged to give reasons for refusing to refer a question to the CJEU
for a preliminary ruling, in the light of the exceptions provided for by the
AVOTIŅŠ v. LATVIA JUDGMENT 47
case-law of the CJEU. The national courts must therefore state the reasons
why they consider it unnecessary to seek a preliminary ruling (see Ullens de
Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 62,
20 September 2011, and Dhahbi v. Italy, no. 17120/09, §§ 31-34, 8 April
2014). The Court emphasises that the purpose of the review it conducts in
this regard is to ascertain whether the refusal to refer a question for a
preliminary ruling constituted in itself a violation of Article 6 § 1 of the
Convention; in so doing, it takes into account the approach already
established by the case-law of the CJEU. This review therefore differs from
that which it conducts when, as in the present case, it examines the decision
not to request a preliminary ruling as part of its overall assessment of the
degree of protection of fundamental rights afforded by European Union law.
The Court carries out this assessment, in line with the case-law established
in Michaud, in order to determine whether it can apply the presumption of
equivalent protection to the decision complained of, a presumption which
the Court applies in accordance with conditions which it has itself laid
down.
111. The Court thus considers that the question whether the full potential
of the supervisory mechanisms provided for by European Union law was
deployed – and, more specifically, whether the fact that the domestic court
hearing the case did not request a preliminary ruling from the CJEU is apt to
preclude the application of the presumption of equivalent protection –
should be assessed in the light of the specific circumstances of each case. In
the present case it notes that the applicant did not advance any specific
argument concerning the interpretation of Article 34(2) of the Brussels I
Regulation and its compatibility with fundamental rights such as to warrant
a finding that a preliminary ruling should have been requested from the
CJEU. This position is confirmed by the fact that the applicant did not
submit any request to that effect to the Senate of the Latvian Supreme
Court. The present case is thus clearly distinguishable from Michaud, cited
above, in which the national supreme court refused the applicant’s request
to seek a preliminary ruling from the CJEU even though the issue of the
Convention compatibility of the impugned provision of European Union
law had never previously been examined by the CJEU (ibid., § 114). Hence,
the fact that the matter was not referred for a preliminary ruling is not a
decisive factor in the present case. The second condition for application of
the Bosphorus presumption should therefore be considered to be satisfied.
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
48 AVOTIŅŠ v. LATVIA JUDGMENT
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
AVOTIŅŠ v. LATVIA JUDGMENT 49
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.
50 AVOTIŅŠ v. LATVIA JUDGMENT
(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
AVOTIŅŠ v. LATVIA JUDGMENT 51
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.
52 AVOTIŅŠ v. LATVIA JUDGMENT
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,
AVOTIŅŠ v. LATVIA JUDGMENT 53
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.
FOR THESE REASONS, THE COURT
Holds, by sixteen votes to one, that there has been no violation of
Article 6 § 1 of the Convention.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 23 May 2016.
Johan Callewaert András Sajó
Deputy to the Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the
Rules of Court, the following separate opinions are annexed to this
judgment:
(a) Joint concurring opinion of Judges Lemmens and Briede;
(b) Dissenting opinion of Judge Sajó.
A.S.
J.C.
54 AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS
JOINT CONCURRING OPINION OF JUDGES
LEMMENS AND BRIEDE
1. We concur with the majority that Article 6 § 1 of the Convention is
applicable in the present case, but has not been violated.
To our regret, however, we are unable to follow the reasoning of the
majority on all points. The majority basically find that there was a
shortcoming in the proceedings before the Supreme Court of Latvia (see
paragraphs 119-21 of the judgment) but that in the specific circumstances of
the case there was no manifest deficiency in the protection of fundamental
rights; for that reason, they apply the presumption of equivalent protection
known as the Bosphorus presumption (see paragraphs 122-25).
We respectfully disagree with the premise that there was a shortcoming
in the proceedings before the Supreme Court.
2. Article 33 of the Brussels I Regulation lays down the principle that a
judgment given in a Member State of the European Union shall be
recognised in the other Member States. Article 34 allows for exceptions to
the principle, enumerating two situations in which a judgment shall not be
recognised. The applicant relied on the exception provided for in
Article 34(2) (see paragraph 30 of the judgment). He argued that the
Limassol judgment was given in default of appearance, and that he had not
been served with the document instituting the proceedings or with an
equivalent document in sufficient time and in such a way as to enable him to
arrange for his defence. There was one obstacle in the way of the applicant:
he would not be able to rely on the exception under Article 34(2) if he had
“failed to commence proceedings (in Cyprus) to challenge the judgment
when it was possible for him to do so” (Article 34(2), in fine). The question
of exhaustion of remedies in Cyprus was thus decisive for the decision on
this argument of the applicant. We note that nowhere it is said in our
judgment that the applicant argued that it had not been possible for him to
challenge the Limassol judgment once he became aware of its existence (see
in particular paragraphs 30 and 32).
It is important to note that the applicant also invoked another provision
of the Brussels I Regulation, namely Article 38(1) (see paragraph 31 of the
judgment). According to that provision, a judgment given in a Member
State “and enforceable in that State” shall be enforced in another Member
State when, on the application of any interested party, it has been declared
enforceable there. The applicant argued, among other things, that “the
claimant company had not produced any documentary evidence
demonstrating that the judgment of 24 May 2004 was enforceable in
AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS 55
Cyprus” (ibid.). The question whether the Limassol judgment was
enforceable in Cyprus was thus decisive for the decision on the second
argument of the applicant.
The Supreme Court of Latvia quashed the judgment of the Regional
Court and ordered the recognition and enforcement of the Limassol
judgment. We attach particular importance to the way in which the Supreme
Court dealt with the two arguments of the applicant. It held, on the basis of
the evidence in the case file, that the Limassol judgment “became final”. It
further held that this fact was confirmed by the explanations of both parties,
according to which no appeal had been lodged against that judgment. In our
opinion, these findings contained an answer to both arguments of the
applicant: since the judgment was final, it was enforceable, and therefore
the argument based on Article 38(1) of the Brussels I Regulation was
rejected; moreover, the applicant had not challenged the judgment, and
therefore the argument based on Article 34(2) of the Brussels I Regulation
was rejected. The latter finding also explains why the Supreme Court
considered that the question of the due notification of the examination of the
case by the Limassol court “lack[ed] relevance”.
3. The majority find that the Supreme Court should have explicitly
examined, in adversarial proceedings, the issue of the burden of proof with
respect to the existence and availability of a remedy against the Limassol
judgment (see paragraph 121 of the judgment).
In our opinion, in the circumstances of the present case Article 6 § 1 of
the Convention did not require the explicit examination of the burden of
proof issue. The Supreme Court proceedings, including those relating to the
burden of proof and the reasoning of its judgments, are regulated by Latvian
law. It was for the Supreme Court to deal with the applicant’s argument
according to the rules of domestic law. The applicant presented his
arguments to the Supreme Court during an adversarial hearing, and the
Supreme Court replied to these arguments in its judgment. Moreover, the
applicant did not even dispute the fact that remedies were available in
Cyprus; on the contrary, he based his argument relating to Article 38(1) of
the Brussels I Regulation on the very fact that the Limassol judgment was
not yet enforceable, which could be understood by the Supreme Court as an
admission that it was still possible to challenge that judgment. In any event,
the Supreme Court implicitly considered that a remedy was indeed
available, and explicitly noted that the applicant had not made use of it.
If the applicant wanted to argue that no remedy had in fact been available
to him in Cyprus, in our opinion it would have been for him to raise this
issue explicitly before the Supreme Court. We question whether he could
56 AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS
expect the Supreme Court to raise that issue of its own motion. And we
definitely consider that he cannot complain under Article 6 § 1 of the
Convention about the lack of an explicit response to an argument that was
not explicitly made.
4. On the basis of the reasoning developed above, we conclude that the
trial before the Supreme Court complied with the adversarial principle and
the principle of equality of arms, and that Article 6 § 1 has therefore not
been violated.
5. Having arrived at that conclusion, we obviously do not have to
examine exactly which remedies were available under Cypriot law (see
paragraph 122 of the judgment).
We find it remarkable that the majority, in order to “save” the respondent
State from a finding that the Convention has been violated, adopt a
reasoning based on an interpretation of Cypriot law, thereby relying on the
information provided by the Cypriot Government. It is in principle not for
the Court to interpret domestic law. Here, the majority interpret provisions
of the domestic law of a third State, which, moreover, do not seem to have
been the subject of adversarial debate before the domestic courts of the
respondent State.
6. Finally, since we find that there was no shortcoming in the
proceedings before the Supreme Court of Latvia, we are of the opinion that
it was not necessary to have recourse to the Bosphorus principle.
When the Court applies the Bosphorus presumption, it in fact reduces the
intensity of its supervisory role, in the interests of international cooperation
(see Michaud v. France, no. 12323/11, § 104, ECHR 2012). It should not do
so where the interests of international cooperation are not at stake.
The application of the principle is therefore, in our opinion, relevant only
if the case at hand involves the implementation of European Union law and
if there has been a shortcoming in the relevant proceedings. The question
then arises whether the deficiency in the protection of fundamental rights is
so manifest that the presumption in favour of the respondent State is
rebutted. In the present case, however, after what we consider to be an
exercise of the scrutiny “normally” exercised by the Court, we find that
there was no deficiency in the proceedings before the Supreme Court of
Latvia.
The application can therefore be dismissed, in our opinion, without any
need to base our reasoning on the Bosphorus principle.
AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS 57
DISSENTING OPINION OF JUDGE SAJÓ
1. Regretfully, I cannot share the views of the majority in this case.
2. The Limassol District Court ordered the applicant to pay a certain
sum on 24 May 2004. That judgment was made in proceedings in which the
summons had been served on the applicant (the defendant in the domestic
proceedings) at the wrong address. He could not therefore have been aware
of the proceedings. The claimant in the case requested execution of the
Cypriot judgment in Latvia. It was in the course of those domestic
proceedings that the applicant first learned of the existence of the Cypriot
judgment. While the Regional Court quashed the impugned order of
enforcement, the Supreme Court of Latvia ordered the recognition and
enforcement of the Cypriot judgment. It is quite striking that the required
certificate, dated 18 January 2007 (i.e. issued two years after the execution
request had been submitted to the court in Latvia), was submitted only in
the appeal to the Supreme Court and that it was accepted at that stage of the
proceedings. However, the case is about more fundamental issues of
fairness. It also raises issues of the treatment of EU law in this Court. These
are the issues where I beg to differ.
3. The Court does not deny “that a decision to enforce a foreign
judgment cannot be regarded as compatible with the requirements of
Article 6 § 1 of the Convention if it was taken without the unsuccessful
party having been afforded any opportunity of effectively asserting a
complaint as to the unfairness of the proceedings leading to that judgment,
either in the State of origin or in the State addressed” (see paragraph 98).
4. However, in the Court’s reasoning:
a) There was no discretion granted to the domestic courts to review this
issue because the matter had to be determined under the Brussels I
Regulation, which, according to the interpretation given by the CJEU (at
least as understood by the Court), does not grant any discretionary power of
assessment.
b) However, such preclusion of a review of the fairness of the domestic
proceedings in the context of the enforceability of the Cypriot judgment
does not raise an issue because the very legal system that precludes it is to
be considered as providing sufficient protection. Where the lack of proper
protection originates from EU law there is, at least prima facie, no lack of
proper protection as “the supervisory mechanisms put in place within the
European Union afforded a level of protection equivalent to that for which
58 AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS
the Convention mechanism provided” (see paragraph 109 with reference to
Bosphorus).
c) This case is about the (mutual) recognition of (foreign) judgments.
d) In the context of the mechanism of mutual recognition of judgments
within the EU, the Bosphorus presumption of equivalent protection applies
to the effect that only manifestly deficient regard for the Convention rights
will raise an issue under the Convention.
e) Such manifest deficiency did not occur, although the Senate of the
Supreme Court of Latvia did not examine the issue of the availability of a
remedy in the State of origin,
f) According to the Cypriot Government, “and not disputed by the
parties”, there was a “perfectly realistic opportunity of appealing” in
Cyprus.
5. If, however, the factual assumption under point f) is correct, the case
should have been declared inadmissible and it would not have been
necessary to rely on Bosphorus and manifest deficiency. Moreover, as the
Court itself has stated, the parties (and the Court) have to rely – in the
proceedings before the European Court of Human Rights – on what the
national courts took into consideration. According to the judgment of the
Senate of the Latvian Supreme Court, “the Limassol District Court
judgment became final” because, among other reasons, no appeal had been
lodged against it. (This cannot be attributed to the applicant). However, it is
exactly the impossibility of making such an appeal that is at the origin of the
lack of procedural fairness: without proper service in the proceedings there
was no possibility to appeal. I do not see at which point the applicant could
have raised the issue of the possibility of appeal in Cyprus in the domestic
proceedings: this lack of opportunity was accepted by all parties and the
domestic courts, and the only point of dispute was whether such a judgment
rendered in violation of the requirements of fair proceedings could be
enforced or not. However, the judgment of the Senate of the Latvian
Supreme Court and the Court blame the applicant, although the execution
proceedings were already under way and the issue was only whether a
judgment rendered in disregard of the requirement of a hearing could be
enforced.
6. The Court itself is aware of the inadequacy of the Latvian
proceedings, and it has found that the Latvian domestic court did not discuss
the availability of an appeal in Cyprus, at least as far as the burden of proof
regarding the existence of such possibility was concerned, in adversarial
proceedings leading to reasoned findings. However, according to the
judgment, this shortcoming did not reach the level of a manifest deficiency.
That is the applicable threshold in situations of presumed equivalent
protection in matters of mutual recognition. It is because of this minimal
AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS 59
scrutiny that the Court could be satisfied that there was no violation as,
given that he allegedly did not appeal in Cyprus, the “regrettable Latvian
shortcomings” do not amount to such a blatant violation.
7. At this point I have to voice my reservations regarding the Bosphorus
principle, and in particular its application to Regulations, which arguably do
not allow a discretion for considerations emerging under the Convention.1
The standard justification given for the Bosphorus principle, as applied by
the Court in the above circumstances, is that the EU legal system already
takes into consideration the Convention values and rights and it provides
protection to these thanks to the CJEU. It is indeed reasonable to assume
that where States transfer their sovereignty to an international organisation
that recognises the fundamental rights of the Convention, as provided for in
the directly applicable Charter of Fundamental Rights (Art. 52 (3)), the
rights will be protected. There is, indeed, a legal mechanism (the CJEU) that
is there to ensure that these rights are actually protected.
8. Moreover, there is an additional justification offered for the manifest
deficiency test as applied in the mutual trust/recognition context: it is argued
that it serves the interest of international cooperation. However, even
assuming, for the sake of argument, that the EU system provides equivalent
protection in terms of its substantive law and also procedurally, through the
CJEU, one should not sacrifice Convention rights for the sake of
international cooperation, a consideration that is not recognised among the
Convention grounds for limitation of rights. I can see good practical reasons
for applying presumptions in favour of Convention conformity of standards
of review within a regional international organisation like the EU which
expressly recognises Convention rights (at least since the applicability of
the Charter). Comity requires a certain respect in this regard. But the
requirement of respect for human rights in the legal sources of the EU does
not make the role of this Court fundamentally different from its supervisory
role vis-à-vis national constitutional systems. After all, Convention rights
are, as a rule, guaranteed by the respective constitutions and the national
judiciary. Moreover, in the present case the CJEU had no opportunity to
provide the expected human-rights protection. While it is true that Member
States of the EU may, under EU law, be required to respect Convention
rights, and therefore courts in other States may assume that this obligation
was observed, there is nothing that automatically guarantees that the first
State did indeed satisfy that obligation, and therefore the second State,
trusting the first one, cannot be said to be exempt from responsibility. Even
if they are exempted from undertaking an in-depth examination of their own
1
In the European Commission’s view (as presented in the third-party observations), the
mechanism of the Brussels I Regulation did provide for an effective review of the right to a
fair hearing in the form of the public-policy exception.
60 AVOTIŅŠ v. LATVIA JUDGMENT – SEPARATE OPINIONS
motion, they should nonetheless carry out a review to the extent necessary
for the effective protection of rights and where the applicant makes a prima
facie case that human rights were disregarded in the first country.
Otherwise, a system not amenable to Convention review will be created. It
is regrettable that the Latvian Supreme Court did not enable the EU system
to review the allegation. This Court shall continue to assess whether State
acts, whatever their origin, are compliant with the Convention, while the
States are and will remain responsible for fulfilling their Convention
obligations.
9. In my view, it does not serve the protection of human rights to extend
the Bosphorus principle to situations where the national courts allegedly
have no discretion to consider Convention rights.2
There is also some
inconsistency here; at least I do not see comparable assumptions of
equivalent protection in matters of application of the UN Charter, even
where the Security Council has exclusive jurisdiction. Lastly, the extension
of the Bosphorus principle to matters of mutual recognition (a matter
certainly not limited to the Brussels Regulation on enforcement of
judgments) seems to generate a presumption unsustained by the realities of
life even according to the CJEU, as became clear most recently in C-404/15
and C-659/15 PPU. This Court shall remain faithful to its position adopted
in M.S.S. (for the execution of foreign judgments in an Article 6 context see
Pellegrini v. Italy, no. 30882/96, ECHR 2001-VIII; see further X v. Latvia
[GC], no. 27853/09 ECHR 2013.)
2
In this regard I find the Commission’s position more convincing, but this Court is not
called upon to determine the position under European Union law any more than the
position under national law, so I cannot rely on those considerations.