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issued by the Registrar of the Court ECHR 165 (2016) 23.05.2016 Presumption of equivalent protection not rebutted, as fundamental rights were sufficiently protected In today's Grand Chamber judgment1 in the case of Avotis v. Latvia (application no. 17502/07) the European Court of Human Rights held, by a majority, that there had been: no violation of Article 6 � 1 (right to a fair hearing) of the European Convention on Human Rights. The case concerned a judgment given by a Cypriot court ordering the applicant to pay a debt he had contracted with a Cypriot company, and the order made by the Latvian courts for the enforcement of the Cypriot judgment in Latvia. The Court reiterated that, when applying European Union law, the Contracting States remained bound by the obligations they had entered into on acceding to the European Convention on Human Rights. Those obligations were to be assessed in the light of the presumption of equivalent protection established by the Court in the Bosphorus judgment and developed in the Michaud judgment. The Court held in particular that it had been up to Mr Avotis himself, after he became aware of the judgment given in Cyprus, to enquire as to the remedies available in Cyprus. The Court considered that Mr Avotis should have been aware of the legal consequences of the acknowledgment of debt deed which he had signed. That deed, governed by Cypriot law, had concerned a sum of money which he had borrowed from a Cypriot company, and contained a clause conferring jurisdiction on the Cypriot courts. Accordingly, Mr Avotis should have ensured that he was familiar with the manner in which possible proceedings would be conducted before the Cypriot courts. As a result of his inaction and lack of diligence, Mr Avotis had contributed to a large extent to the situation of which he complained before the Court and which he could have prevented. The Court did not consider that the protection of fundamental rights had been manifestly deficient such that the presumption of equivalent protection was rebutted. Principal facts The applicant, Peteris Avotis, is a Latvian national who was born in 1954 and lives in Garkalne (Riga district). At the time of the events he was an investment consultant. On 4 May 1999 Mr Avotis and F.H. Ltd, a commercial company incorporated under Cypriot law, signed an acknowledgment of debt deed before a notary, under the terms of which Mr Avotis declared that he had borrowed 100,000 United States dollars from F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The deed specified that it was governed in all respects by Cypriot law and that the Cypriot courts had non-exclusive jurisdiction to hear any disputes arising out of it. It gave the applicant's address as G. Street in Riga. In 2003 F.H. Ltd. brought proceedings against Mr Avotis in the Limassol District Court in Cyprus, alleging that he had not repaid the debt and requesting that he be ordered to pay it together with interest. On 24 July 2003 a summons was drawn up which gave Mr Avotis's address as G. Street in Riga. Since the applicant was not resident in Cyprus, F.H. Ltd. applied to the same District Court on 1. Grand Chamber judgments are final (Article 44 of the Convention). All final judgments are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution. 11 September 2003 seeking an order enabling a summons to be served on Mr Avotis outside the country and requiring him to appear within 30 days from the date of issuing of the summons. Mr Avotis contended that he could not have received the summons at the address in question, which was neither his home nor his business premises. On 7 October 2003 the Limassol District Court ordered that notice of the proceedings be served on Mr Avotis at the address in G. Street in Riga. Mr Avotis claimed never to have received the summons. As Mr Avotis did not appear, the Limassol District Court ruled in his absence on 24 May 2004. On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale District Court seeking recognition and enforcement of the judgment of 24 May 2004 and also sought to have a temporary precautionary measure applied. The request gave as Mr Avotis's place of residence an address which differed from the one previously notified. In an order of 27 February 2006 the Latgale District Court granted the company'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 land register of a charge on the property owned by Mr Avotis. Mr Avotis alleged that it was not until 15 June 2006 that he had 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. He did not attempt to appeal against the Cypriot judgment in the Cypriot courts, but lodged an appeal against the order of 27 February 2006 with the Riga Regional Court, while asking the District Court to extend the time allowed for lodging the appeal. He maintained that the statutory 30-day period should start running on 16 June 2006, the date on which he had taken cognisance of the order in question. The District Court granted his request and extended the time-limit for lodging an appeal. In his appeal Mr Avotis contended that the recognition and enforcement of the Cypriot judgment in Latvia breached Council Regulation (EC) No 44/2001 of 22 December 2000 ("the Brussels I Regulation") and several provisions of the Latvian Civil Procedure Law. He alleged in particular that he had not been duly informed of the proceedings in Cyprus and that the document instituting the proceedings had not been served on him in sufficient time and in such a way as to enable him to arrange for his defence. In a judgment of 2 October 2006 the Riga Regional Court quashed the impugned order and rejected the request for recognition and enforcement of the Cypriot judgment. F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which on 31 January 2007 quashed and annulled the judgment of 2 October 2006. It granted F.H. Ltd.'s request and ordered the recognition and enforcement of the Cypriot judgment. As to Mr Avotis's argument that he had not been duly notified of the examination of the case by the Cypriot court, the Supreme Court found that it "lack[ed] relevance" since the applicant had not appealed against the judgment in Cyprus. Complaints, procedure and composition of the Court Relying on Article 6 � 1, the applicant complained that in issuing a declaration of enforceability in respect of the Cypriot judgment 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. The application was lodged with the European Court of Human Rights on 20 February 2007. In its judgment of 25 February 2014 the Chamber held by four votes to three that there had been no violation of Article 6 � 1 of the Convention. On 23 May 2014 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention (referral to the Grand Chamber). On 8 September 2014 the panel of the Grand Chamber granted that request. A hearing was held on 8 April 2015. Judgment was given by the Grand Chamber of 17 judges, composed as follows: Andr�s Saj� (Hungary), President, Iil Karaka (Turkey), Josep Casadevall (Andorra), Elisabeth Steiner (Austria), J�n Sikuta (Slovakia), Nona Tsotsoria (Georgia), Ganna Yudkivska (Ukraine), Andr� Potocki (France), Paul Lemmens (Belgium), Ales Pejchal (the Czech Republic), Faris Vehabovi (Bosnia and Herzegovina), Ksenija Turkovi (Croatia), Egidijus Kris (Lithuania), Robert Spano (Iceland), Iulia Motoc (Romania), Jon Fridrik Kj�lbro (Denmark) and, Jautrte Briede (Latvia), ad hoc Judge, and also Johan Callewaert, Deputy Grand Chamber Registrar. Decision of the Court Article 6 � 1 The Court observed that it had never previously been called upon to examine observance of the guarantees of a fair hearing in the context of mutual recognition in civil and commercial matters based on European Union law. In the present case it had to determine whether the review conducted by the Senate of the Latvian Supreme Court had been sufficient for the purposes of Article 6 � 1. The Court noted that the recognition and enforcement of the Cypriot judgment had taken place in accordance with Council Regulation (EC) No 44/2001 of 22 December 2000, known as the Brussels I Regulation, which had been applicable at the relevant time. Mr Avotis 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 reiterated that it was not competent to rule on compliance with domestic law, other international treaties or European Union law. The task of interpreting and applying the provisions of the Brussels I Regulation fell firstly to the Court of Justice of the European Union (CJEU), and secondly to the domestic courts in giving effect to the Regulation as interpreted by the CJEU. The Court's jurisdiction was limited to reviewing compliance with the requirements of the Convention. The Court reiterated that, when applying European Union law, the Contracting States remained bound by the obligations they had entered into on acceding to the Convention. Those obligations were to be assessed in the light of the presumption established by the Court in the Bosphorus judgment and developed in the Michaud judgment. In the Bosphorus judgment (� 72) the Court had 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 Michaud (� 106) it had stressed that this finding applied a fortiori since 1 December 2009, the date of entry into force of Article 6 (amended) of the Treaty on European Union, which gave fundamental rights, as guaranteed by the Convention and as they resulted from shared constitutional traditions, the status of general principles of European Union law. The Court had also recognised that the mechanism provided for by European Union law for supervising observance of fundamental rights likewise afforded protection comparable to that for which the Convention provided. The Court had attached considerable importance to the role and powers of the CJEU, despite the fact that individual access to that court was more limited than access to the Strasbourg Court. The application of the presumption of equivalent protection in the legal system of the European Union was subject to two conditions: 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. With regard to the first condition, the Court noted that the provision in question had been contained in a Regulation, which was directly applicable, 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. As to the provision applied in the instant case � Article 34(2) of the Brussels I Regulation � the Court noted that it had allowed the refusal of recognition or enforcement of a foreign judgment only within very precise limits and subject to certain conditions. It was clear from the interpretation given by the CJEU in a fairly extensive body of case-law that this provision did not confer any discretion on the court from which the declaration of enforceability was sought. The Court concluded that the Senate of the Latvian Supreme Court had not enjoyed any margin of manoeuvre in this case. Article 34(2) of the Brussels I Regulation had not granted States any discretionary powers of assessment. With regard to the second condition, the Court observed that it had recognised in the Bosphorus judgment that the supervisory mechanisms put in place within the European Union afforded a level of protection equivalent to that for which the Convention mechanism provided. It noted that the Senate of the Supreme Court had not requested a preliminary ruling from the CJEU regarding the interpretation and application of Article 34(2) of the Regulation. Nevertheless, it noted that Mr Avotis had not advanced 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 sought from the CJEU. Likewise, he had not requested the Senate of the Latvian Supreme Court to seek a preliminary ruling. The Court concluded that the presumption of equivalent protection was applicable in the present case, as the Senate of the Supreme Court had done no more than implement Latvia's legal obligations arising out of its membership of the European Union. The Court observed that the Brussels I Regulation was based on mutual recognition mechanisms founded on the principle of mutual trust between the Member States of the European Union. The Court had repeatedly asserted its commitment to international and European cooperation. It considered 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 from the standpoint of the Convention. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms. However, it was apparent that the aim of effectiveness pursued by some of those methods resulted in the review of the observance of fundamental rights being tightly regulated or even limited. Limiting to exceptional cases the power of the State in which recognition was sought to review the observance of fundamental rights by the State of origin of the judgment could run counter to the requirement imposed by the Convention according to which the court in the State addressed must be empowered to conduct a review in order to ensure that the protection of those rights was not manifestly deficient. The Court further observed that where the domestic authorities gave effect to European Union law and had no discretion in that regard, the presumption of equivalent protection was applicable. This was the case where the mutual recognition mechanisms required the court to presume that the observance of fundamental rights by another Member State had been sufficient. The domestic court was thus deprived of its discretion in the matter, leading to automatic application of the presumption of equivalence. Accordingly, the Court had to satisfy itself, where the conditions for application of the presumption of equivalent protection were met, that the mutual recognition mechanisms did not leave any gap or particular situation which would render the protection of the human rights guaranteed by the Convention manifestly deficient. It had to verify that the principle of mutual recognition was not applied automatically and mechanically to the detriment of fundamental rights. Where the courts of a State which was both a Contracting Party to the Convention and a Member State of the European Union were called upon to apply a mutual recognition mechanism established by EU law, and a serious and substantiated complaint was raised before them to the effect that the protection of a Convention right had been manifestly deficient and that this situation could not be remedied by European Union law, they could not refrain from examining that complaint on the sole ground that they were applying EU law. The Court considered that the requirement to exhaust remedies arising from the mechanism provided for by the Brussels I Regulation, as interpreted by the CJEU (the defendant must have made use of any remedies available in the State of origin), was not problematic in terms of the guarantees of Article 6 � 1. This was a precondition which was based on an approach similar to that underpinning the rule of exhaustion of domestic remedies set forth in Article 35 � 1 of the Convention. States were dispensed from answering before an international body for their acts before they had had an opportunity to put matters right through their own legal system, and it was presumed that there was an effective remedy available in the domestic system in respect of the alleged breach. In the present case the Court noted that, in the proceedings before the Senate of the Supreme Court, Mr Avotis had complained that he had not received any summons or been notified of the Cypriot judgment. He had relied on the grounds for non-recognition provided for by the Brussels I Regulation. That provision stated expressly that such grounds could be invoked only on condition that proceedings had previously been commenced to challenge the judgment in question, in so far as it was possible to do so. The fact that Mr Avotis had not challenged the judgment as required necessarily raised the question of the availability of that legal remedy in Cyprus. The Senate had thus not been entitled simply to criticise the applicant, as it had done 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. Nevertheless, in the circumstances of the case Cypriot law had afforded Mr Avotis, 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. In accordance with Cypriot law, where a defendant against whom a judgment had been given in default applied to have that judgment set aside and alleged that he or she had not been duly summoned before the court which gave judgment, the court hearing the application was required � and not merely empowered � to set aside the judgment given in default. Accordingly, the Court was not convinced by Mr Avotis's argument that such a procedure would have been bound to fail. In the period between 16 June 2006 (the date on which he had been able to acquaint himself with the content of the Cypriot judgment and the entire case file) and 31 January 2007 (the date of the hearing of the Senate of the Supreme Court), Mr Avotis had had sufficient time to pursue a remedy in the Cypriot courts, but had made no attempt to do so. The Court did not consider that the protection of fundamental rights had been manifestly deficient such that the presumption of equivalent protection was rebutted. The Court held by sixteen votes to one that there had been no violation of Article 6 � 1. Separate opinions Judge Lemmens and Judge Briede expressed a joint concurring opinion and Judge Saj� expressed a dissenting opinion. These opinions are annexed to the judgment. The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int. To receive the Court's press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter @ECHRpress. Press contacts [email protected] | tel.: +33 3 90 21 42 08 Denis Lambert (tel: + 33 3 90 21 41 09) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Nina Salomon (tel: + 33 3 90 21 49 79) Inci Ertekin (tel: + 33 3 90 21 55 30) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. 6