Eu Police Line In Addition To The Echr: The Bosphorus Presumption Is All The Same Exist In Addition To Kicking - The Instance Of Avotiņš V. Latvia

Stian Øby Johansen, PhD beau at the University of Oslo Faculty of Law*

Yesterday, 23 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment inwards the example of Avotiņš v. Latvia. This seems to endure the ECtHR’s root detailed appraisal of the so-called Bosphorus presumption (the dominion on the human relationship betwixt European Union police together with the ECHR) after the Court of Justice of the European Union (CJEU) in Opinion 2/13 rejected a draft understanding providing for the accession of the European Union to the European Convention of Human Rights (ECHR). It also provides a root glimpse of how the ECtHR views the European Union police regulation of usual trust, which has locomote peculiarly dearest to the CJEU over the finally pair of years.

THE BOSPHORUS PRESUMPTION AND OPINION 2/13

For the uninitiated: the Bosphorus presumption refers to a doctrine inwards the case-law of the ECtHR that goes dorsum to the 2005 judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland. In that judgment the ECtHR root stated, inwards line alongside previous case-law, that fellow member states of an international arrangement (such every bit the EU) are silent liable nether the ECHR for “all acts together with omissions of its organs regardless of whether the human activeness or omission inwards query was a outcome […] of the necessity to comply alongside international legal obligations” (Bosphorus para 153). It also recognized “the growing importance of international cooperation together with of the consequent withdraw to secure the proper functioning of international organisations” (Bosphorus para. 150). In an attempt to reconcile these 2 positions, the ECtHR established what is at nowadays known every bit the Bosphorus presumption or the presumption of equivalent protection of ECHR rights past times the EU, fifty-fifty though the European Union is non a political party to the ECHR:

155. In the Court’s view, State activeness taken inwards compliance alongside such legal obligations is justified every bit long every bit the relevant organization is considered to protect key rights, every bit regards both the noun guarantees offered together with the mechanisms controlling their observance, inwards a mode which tin endure considered at to the lowest degree equivalent to that for which the Convention provides […]. By “equivalent” the Court agency “comparable”; whatever requirement that the organisation’s protection endure “identical” could run counter to the involvement of international cooperation pursued […]. However, whatever such finding of equivalence could non endure final together with would endure susceptible to review inwards the lite of whatever relevant alter inwards key rights protection.

156. If such equivalent protection is considered to endure provided past times the organisation, the presumption volition endure that a State has non departed from the requirements of the Convention when it does no to a greater extent than than implement legal obligations flowing from its membership of the organisation.

However, whatever such presumption tin endure rebutted if, inwards the circumstances of a particular case, it is considered that the protection of Convention rights was apparently deficient.

Many withdraw maintain been curious close whether the ECtHR would modify the Bosphorus presumption next the rather belligerent rejection of European Union accession to the ECHR past times the CJEU in Opinion 2/13. In the foreword of the ECtHR’s 2015 Annual Report its President, Guido Raimondi, indeed seemed to signal an involvement inwards shaking things upwards (emphasis added):

The halt of the yr was also marked past times the delivery on eighteen Dec 2014 of the Court of Justice of the European Union’s (CJEU) eagerly awaited sentiment on the draft understanding on the accession of the European Union to the European Convention on Human Rights. [T]he CJEU’s unfavourable sentiment is a smashing disappointment. Let us non forget, however, that the principal victims volition endure those citizens whom this sentiment (no. 2/13) deprives of the correct to withdraw maintain acts of the European Union subjected to the same external scrutiny every bit regards abide by for human rights every bit that which applies to each fellow member State. More than ever, therefore, the onus volition endure on the Strasbourg Court to do what it tin inwards cases earlier it to protect citizens from the negative effects of this situation.

Yet, in the ECtHR Grand Chamber judgment inwards the example of Avotiņš v. Latvia, it tin clearly endure seen that – spoiler alert – the Bosphorus presumption is silent endure together with kicking. Indeed, every bit I volition demo below, the ECtHR for the root fourth dimension applies it to a example concerning obligations of usual recognition nether European Union law. This is notable, since 1 of the top dog arguments the CJEU pose forwards in Opinion 2/13was that European Union accession to the ECHR posed such a large threat to the regulation of usual trust that it would “upset the underlying relaxation of the European Union together with undermine the autonomy of European Union law” (Opinion 2/13 para 194).

BACKGROUND TO THE CASE

Before nosotros facial expression at how the Grand Chamber applied the Bosphorus, it is necessary to summarize the key facts of the case. Mr Pēteris Avotiņš is a Latvian national, who inwards May 1999 borrowed 100 000 USA dollars from a companionship named F.H. Ltd. together with undertook to repay that amount alongside involvement past times xxx June 1999. The loan contract was governed past times Cypriot law, together with Cypriot courts had non-exclusive jurisdiction to listen whatever disputes arising out of it.

In 2003, F.H. Ltd. brought proceedings against Avotiņš inwards a Cypriot district court, alleging that he had non repaid the above-mentioned debt. Since Avotiņš did non reside inwards Cyprus, notice of the proceedings together with summons to seem had to endure served on the applicants past times Latvian authorities. There is some factual disagreement regarding the serving of this application (see para nineteen of the judgment). It seems every bit if the summons sideslip had been signed, but the signature on the sideslip did non seem to tally to the applicant’s name. Nevertheless, the Cypriot courtroom ruled inwards Avotiņš’ absence on 24 May 2004, together with ordered him to pay F.H. Ltd. 100 000 USA dollar summation interest. According to the Cypriot judgment, the applicant had been duly informed of the hearing, but had non attended.

In Feb 2015, F.H. Ltd. applied to the Riga City District Court seeking recognition together with enforcement of the Cypriot judgment. This asking was root rejected, due to discrepancies regarding the postal address of Mr. Avotiņš. This rejection was appealed past times F.H. Ltd. to the Riga Regional Court, which quashed the District Court’s rejection. Upon reexamination of F.H. Ltd.’s application past times the District Court the application was granted inwards full – without the parties beingness present.

According to Avotiņš, it was non until fifteen June 2016 that he became aware of the Cypriot judgment together with the District Court gild for its enforcement. He contacted the District Court at nowadays together with acquainted himself alongside the Cypriot judgment together with the Latvian order. Interestingly, earlier the ECtHR the Latvian regime did non dispute these facts.

This is where things larn complex (see paras 27-35 of the judgment), together with I tin for the sake of brevity solely give a brief summary of the facts from this indicate out. First, Avotiņš did non attempt to appeal the Cypriot judgment. However, he decided to appeal the Latvian enforcement gild on the grounds that it violated the Brussels I regulation (concerning jurisdiction over together with recognition of civil judgments), which is component of European Union law, every bit good every bit rules of Latvian civil procedure. Second, the Regional Court inwards Oct 2006 accepted Avotiņš’ submissions, together with quashed the enforcement order. The District Court seemed to let on that the Cypriot judgment was non enforceable due to the lack of the certificate referred to inwards Article 54 of the Brussels I regulation. Third, F.H. Ltd. appealed the Oct 2006 gild of the Regional Court to the Supreme Court. At the start of the Supreme Court hearing inwards Jan 2007 F.H. Ltd. submitted copies of inter alia the certificate referred to inwards Article 54 of the Brussels I regulation. Later the same twenty-four hours the Latvian Supreme Court quashed the Oct 2006 gild of the Regional Court, together with ordered the recognition together with enforcement of the Cypriot judgment. In doing so, the Supreme Court held that nether article 36 of the Brussels I regulation a unusual judgment “may nether no circumstances endure reviewed every bit to its substance” (para 34 of the judgment, citing the Jan 2007 judgment of the Latvian supreme court).

THE CASE BEFORE THE ECTHR

The applications

Avotiņš together with so filed complaints against Republic of Latvia together with Republic of Cyprus earlier the ECtHR. The application against Republic of Cyprus was rejected, due to beingness likewise piece of cake (see para 97 of the judgment, referring to a ECtHR determination of 3 March 2010). However, his application against Republic of Latvia was filed inside the time-limits.

In his application against Latvia, Avotiņš argued that the Latvian Supreme courtroom had infringed his correct to a fair hearing, past times recognizing together with enforcing the Cypriot judgment which inwards his see was defective every bit it had been given inwards breach of his correct to a defence. Several tertiary parties intervened inwards the latter case, including the European Commission, which provided a lengthy submission on the applicability of the Bosphorus presumption to the example together with the compatibility of Brussels I regulation alongside ECHR article 6 (the correct to a fair trial).

The ECtHR’s introductory remarks

The judgment of the ECtHR, which was adopted past times a bulk of 16 votes to 1 (with 2 judges appending a articulation concurring opinion), opens alongside the premise that ECHR article 6 is applicable to the execution of unusual final judgments. According to the Court (para 98 of the judgment):

a determination to enforce a unusual judgment cannot endure regarded every bit compatible alongside the requirements of Article 6 § 1 of the Convention if it was taken without the unsuccessful political party having been afforded whatever chance of effectively asserting a electrical load every bit to the unfairness of the proceedings leading to that judgment, either inwards the State of origin or inwards the State addressed.

The ECtHR together with so noted that it had “never previously been called upon to examine observance of the guarantees of a fair hearing inwards the context of usual recognition based on European Union law” (para 98). However, the ECtHR added it had “always applied the full general principle” that a asking for recognition together with enforcement of unusual judgments cannot endure granted without the courtroom examining the asking “first conducting some mensurate of review of [the foreign] judgment inwards lite of the guarantees of a fair hearing”.

Does the Bosphorus presumption apply?

Following these initial remarks, the ECtHR went on to consider whether together with to what extent the Bosphorus presumption was applicable to the case. It did so over x pages (paras 101-127), making this in all likelihood the longest handling of this famed presumption past times the ECtHR to day.

First, on the range of the Bosphorus presumption, the ECtHR confirmed the principles set downward inwards its previous past times referring to the summary of that case-law inwards paras 102-104 of its judgment inwards the Michaud case. From that case-law it follows that the noun protection of human rights inwards the expanse of European Union police that the Brussels I regulation belongs to is equivalent. In particular, this is confirmed past times article 52(3) of the EU’s Charter of Fundamental Rights, which stays that the Charter has to endure interpreted consistently alongside ECHR rights that tally to it. The key status for applying the Bosphorus presumption was thus fulfilled.

Next, it follows from the ECtHR’s case-law that 2 farther atmospheric condition must endure satisfied for the Bosphorus presumption to apply. These are (1) the “absence of whatever margin of manouvre” on the component of the domestic regime implementing an European Union police obligation, together with (2) the “deployment of the total potential of the supervisory mechanism” provided for nether European Union law. Applying these principles to the introduce case, the ECtHR first found that the Latvian Supreme Court did inwards fact non withdraw maintain whatever margin of manoeuvre inwards this case. In coming to this conclusion, the ECtHR pointed to the CJEU’s case-law on the relevant provisions of the Brussels I regulation, which “did non confer whatever discretion on the courtroom from which the annunciation of enforceability was sought” (para 106 i.f.).

The ECtHR’s give-and-take of the second condition, the deployment of the total potential of the supervisory mechanisms nether European Union law, was much to a greater extent than extensive. The Latvian Supreme Court had non requested a preliminary ruling from the CJEU regarding the interpretation of the relevant provisions of the Brussels I regulation. However, this was non decisive for the ECtHR, which stated (para 109):

this minute status should endure applied without excessive formalism together with taking into line concern human relationship the specific features of the supervisory machinery inwards question. It considers that it would serve no useful purpose to brand the implementation of the Bosphorus presumption patch of written report to a requirement for the domestic courtroom to asking a ruling from the CJEU inwards all cases without exception […].

Following this statement, the ECtHR referred to cases where it has found that ECHR article 6 require domestic apex courts to give reasons when they spend upwards to refer questions to the CJEU for a preliminary ruling, “in lite of the exceptions provided for past times the case-law of the CJEU” (para 110). However, the ECtHR was quick to add together that the review conducted inwards those cases differs from that inwards the introduce case, where “it examines the determination non to asking a preliminary ruling every bit component of its overall assessment of the aeroplane of protection of key rights afforded past times European Union law” (para 110).

For those reasons, the ECtHR found that “whether the fact that the domestic courtroom hearing the example did non asking a preliminary ruling […] is apt to forestall the application” of the Bosphorus presumption “should endure assessed inwards lite of the specific circumstances inwards each case” (para 111). It together with so pointed to the relevant circumstances at play inwards the introduce case: Avotiņš “did non advance whatever specific declaration concerning the interpretation” of the relevant provisions of the Brussels I regulation, together with he did non asking that the Latvian Supreme Court should inquire the CJEU for a preliminary ruling (para 111). Since at that spot was thus norequest for a preliminary ruling, the fact that the Latvian Supreme Court did non inquire for a preliminary ruling was non “a decisive factor” (para 111). Consequently, the ECtHR found that also the minute status for the application of theBosphorus presumption was satisfied.

Was the protection of ECHR rights “manifestly deficient”?

Influenza A virus subtype H5N1 finding that the Bosphorus presumption applies is non the halt of it, however, since that presumption tin endure rebutted if the protection of the rights set downward inwards the ECHR was “manifestly deficient” inwards the introduce example (para 112). In the opening paragraph of this component of the judgment, the ECtHR points to the fact that the Brussels I regulation is based on the regulation of usual trust, together with affirmed the importance of this regulation inwards European Union police (para 113):

The Court is mindful of the importance of the usual recognition mechanisms for the structure of the expanse of freedom, safety together with justice referred to inwards Article 67 of the TFEU, together with of the usual trust which they require.

Nevertheless, the ECtHR before long went on to stress that the “methods used to create that expanse must non infringe the key rights of the persons affected past times the resulting mechanisms, every bit indeed confirmed past times Article 67(1) of the TFEU” (para 114). This declaration was at nowadays followed past times some key critical remarks (para 114, emphasis added):

However, it is apparent that the aim of effectiveness pursued past times some of the methods used results inwards the review of the observance of key rights beingness tightly regulated or even limited. Hence, the CJEU stated of late inwards Opinion 2/13 that “when implementing European Union law, the Member States may, nether European Union law, endure required to presume that key rights withdraw maintain been observed by the other Member States, so that …, save inwards exceptional cases, they may non check whether that other Member State has actually, in a specific case, observed the key rights guaranteed past times the EU” […]. Limiting to exceptional cases the power of the State in which recognition is sought to review the observance of key rights past times the State of origin of the judgment could, inwards practice, run counter to the requirement imposed past times the Convention according to which the courtroom inwards the State addressed must at to the lowest degree endure empowered to acquit a review commensurate alongside the gravity of whatever serious allegation of a violation of key rights inwards the State of origin, inwards gild to ensure that the protection of those rights is non apparently deficient.

By thus requiring domestic courts to presume the observance of key rights past times other fellow member states, every bit the European Union police regulation of usual trust requires, the domestic courts are “deprived of […] discretion inwards the matter, leading to automatic application of the Bosphorus presumption” (para 115). Although it is a fleck hard to discern just what the ECtHR is alluding to here, it is hard to disagree that the nature of the usual trust regulation creates a paradoxical province of affairs (para 115 i.f.); a twofold limitation of the domestic court’s review of the observance of key rights, due to the combined effect of the presumption on which usual recognition is founded together with the Bosphorus presumption of equivalent protection.

However, despite these apparent limitations on domestic courts when the regulation of usual trust is at play, the ECHR, which is a “constitutional musical instrument of European populace order”, nevertheless requires of them to ensure that at that spot is no manifest deficiencies (para 116, emphasis added):

"Accordingly, the Court must satisfy itself […] that the usual recognition mechanisms do non locomote out whatever gap or particular province of affairs which would homecoming the protection of the human rights guaranteed past times the Convention apparently deficient. In doing so it takes into account, inwards a spirit of complementarity, the mode inwards which these mechanisms operate together with inwards particular the aim of effectiveness which they pursue. Nevertheless, it must verify that the regulation of usual recognition is non applied automatically together with mechanically […] to the detriment of key rights – which, the CJEU has also stressed, must endure observed inwards this context […]. In this spirit, where the courts of a State which is both a Contracting Party to the Convention together with a Member State of the European Union are called upon to apply a usual recognition machinery established past times European Union law, they must give total effect to that machinery where the protection of Convention rights cannot endure considered apparently deficient. However, if a serious together with substantiated electrical load is raised earlier them to the effect that the protection of a Convention correct has been apparently deficient together with that this province of affairs cannot endure remedied past times European Union law, they cannot refrain from examining that electrical load on the sole Blue Planet that they are applying European Union law."

The bear witness set downward inwards the final judgement of the quoted paragraph is a tough one. It is thence no surprise that Mr. Avotiņš was unable to come across its criteria.

What is to a greater extent than surprising, though, is how unopen he got to doing so. Although the ECtHR found the scheme of usual recognition inwards the Brussels I regulation to endure by together with large compatible alongside ECHR article 6 (paras 117-119), the ECtHR was skeptical close the Latvian Supreme Court’s interpretation together with application of that regulation. Avotiņš had, every bit mentioned above, argued that the application for recognition of the Cypriot judgment should withdraw maintain been refused. According to the ECtHR he “raised cogent arguments inwards the Latvian courts alleging the existence of a procedural defect which, a priori, was reverse to [ECHR article 6] together with precluded the enforcement of the Cypriot judgment inwards Latvia”. (para 120 i.f., emphasis added)

Moreover, the ECtHR found that the Latvian Supreme Court applied provisions of the Brussels I regulation that provided for exceptions to the obligation of usual recognition likewise mechanically. The details hither are quite technical, together with concern the determination of the burden of proof – an number that is non governed past times European Union law. In its finally appraisal of the Latvian Supreme Court’s approach, the ECtHR stated (para 121): 'This approach, which reflects a literal together with automatic application of Article 34(2) of the Brussels I Regulation, could inwards theory atomic number 82 to a finding that the protection afforded was apparently deficient such that the presumption of equivalent protection of the rights of the defense guaranteed past times Article 6 § 1 is rebutted.'

This is every bit about a finding of “manifest deficiency” every bit nosotros withdraw maintain ever gotten inwards the ECtHR’s case-law – to a greater extent than on that subsequently – but in 1 lawsuit again the specific circumstances of the example came to the rescue. According to Cypriot police Avotiņš had a “perfectly realistic opportunity” of appealing the seemingly final judgment (para 122). That the applicant was unaware of this chance did non matter, every bit he when entering into a loan understanding should withdraw maintain “ensured that he was familiar alongside the mode inwards which possible proceedings would endure conducted earlier Cypriot courts” (para 124).

Consequently, the judgment fizzles out alongside a finding that the protection of key rights was non apparently deficient, inwards the specific circumstance of the introduce example (para 125).

COMMENTS

This judgment is notable for at to the lowest degree 3 reasons. First, it is notable for unproblematic fact that it is the root fourth dimension the Grand Chamber applies the Bosphorus presumption since Opinion 2/13. The judgment confirms that the presumption is silent endure together with well, every bit 1 could in all likelihood await despite some murmuring from the ECtHR president.

Second, it is notable for beingness the root example where the ECtHR goes correct upwards to the border of finding that a “manifest deficiency” inwards the protection of key rights has occurred, but together with so backing off at the finally minute because of a specific characteristic of the example at hand. As a side note, though, the ECtHR’s reasoning is less clear than 1 could withdraw maintain hoped for here. Since the burden of proof seems to endure key to the outcome of the Latvian Supreme Court’s judgment, together with this is an number that is non regulated past times European Union law, 1 powerfulness withdraw maintain argued that the Latvian Supreme Court did in fact withdraw maintain some “margin of manoeuvre”. It seems every bit if it could withdraw maintain complied alongside both the obligation of usual recognition together with ECHR article 6 past times modifying the Latvian rules on the burden of proof. The ground for the lack of clarity on the component of the ECtHR hither may endure caused past times opaqueness of the Latvian Supreme Court’s reasoning; it “tacitly presumed either that the burden of proof set alongside [Avotiņš] or that [a remedy against the Cypriot judgment] had inwards fact been available to the applicant” (para 121).

Third, the example is notable for beingness the root where Bosphorus presumption takes the regulation of usual trust caput on. Particularly because that regulation has been elevated to constitutional status past times the CJEU over the finally pair of years – alongside Opinion 2/13 every bit a major catalyst (see, particularly, Opinion 2/13 paras 191-194). The ECtHR’s judgment is wary of the dangers of mechanical application of usual trust obligations, together with reaffirms the principles set downward in Bosphorus. Despite some critical comments, my best approximate is that the CJEU volition reckon this judgment every bit something of an olive branch from the ECtHR. From the CJEU’s perspective the example is indeed welcome, every bit cases concerning the Dublin Regulation (e.g. M.S.S. v. Kingdom of Belgium together with Greece), where the ECtHR withdraw maintain found that European Union Member States violated ECHR article 3 past times sending asylum seekers dorsum to the root European Union province they entered, were non been good received. However, 1 must non forget that at that spot are of import legal differences betwixt cases such asM.S.S. and the introduce example of Avotiņš. Notably, the Dublin regulation does not – despite myths to the reverse – incorporate any obligation to ship asylum seekers dorsum to the root European Union province they entered. In Avotiņš the province of affairs is markedly different: at that spot is seemingly a clear obligation on the Latvian regime to recognize together with enforce the Cypriot judgment. Although, admittedly, the ECtHR’s unclear reasoning concerning the Latvian rules on burden of proof makes this distinction a fleck less clear.

Barnard & Peers: chapter 9

JHA4: chapter II:8

Photo credit: ukhumanrightsblog.com

*Reblogged alongside permission from the Øby-kanalen blog

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