The Bosphorus doctrine cannot be regarded as without teeth

By Brend Plantinga

Case of Avotins v. Latvia

On 23 May 2016 the European Court of Human Rights (ECtHR) filed its judgement on the case of Avotins v. Latvia. Here the Latvian court implemented the Brussels I Regulation, which is based on the principle of mutual recognition. This principle is based on the principle of mutual trust. Because of the mechanism, courts can assume all European Member States comply with procedural rights, it ensures the well functioning and effectiveness of the European Union system as a whole.

In this case the court applies the Bosphorus criteria. One of the main reasons to apply this ‘equivalent protection’ doctrine is to make sure there is no automatic recognition and enforcement of judgements given in another Member State, because it could lead to a breach of the fundamental rights provided by the European Convention of Human Rights (ECHR). In the Bosphorus case the court decided that there should be a presumption that the EU generally offers a level of protection of fundamental rights that is equivalent to that offered by the convention. But the court also decided that ‘when in the circumstances of a particular case it is clear that the protection of Convention rights was manifestly deficient, the presumption can be rebutted and a violation of the convention can be found’.

In the Aviotins case, the question arises if the act of accepting the Cypriot judicial system, which could have procedural defects, by the Latvian judge, can qualify as manifest deficient protection of the rights guaranteed in the ECHR. The court shows some bite and mentions the principles of mutual recognition and mutual trust cannot be applied automatically. Consequently the observance of fundamental rights should not be tightly regulated and limited. In this case there was a chance to find a ‘manifest deficiency’ of fundamental rights protection, but the court ruled differently. In this case note I will answer the question why the court did not find a breach of fundamental rights and what the implications of this outcome are for the protection of these rights within the European Union.

In may 1999 the applicant, a Latvian national and a company registered in Cyprus signed a formal acknowledgement of debt, the applicant stated he had borrowed a sum of money, and undertook to repay the sum in question by 30 June of the same year. The applicant did not pay his debt and was sued by the company in 2003. Hence he had been duly notified of the hearing but did not appear, in may 2004 the court ordered him to pay the debt together with interest. In February 2006 the Latvian court ordered the recognition and enforcement of the Cypriot judgement, a situation in which the Brussels I Regulation pertains. The applicant claimed he heard about both the judgement and enforcement order in June 2006 and appealed against the enforcement order in the Latvian courts. In January 2007 the Senate of the Latvian Supreme Court and granted the company’s request, it ordered the recognition and enforcement of the Cypriot judgement; eventually the applicant complied with the judgement. The applicant did not submit a request of a preliminary ruling from the ECJ. Then an application to the ECtHR followed. The applicant submitted that the Latvian courts failed to comply with article 6 (1) of the ECHR and breached his defence rights. Reason for this was declaring the Cypriot judgement enforceable and not examining the argument of not being duly notified on the examination of the case by the Cypriot court, resulting in not being able to defend his case.

The ECtHR ruled the Latvian court implemented and exercised the Brussels I Regulation and did not have any discretion by doing that. There is an absence of any margin of manoeuvre on the part of domestic authorities as mentioned in the Michaud Case this means the Bosphorus doctrine is applicable. The next question is ‘whether in a concrete case, the full potential of the supervisory mechanism provided for by European Union law has been deployed’. In the Avotins case the court decided that the system of preliminary rulings of art. 67 TFEU should generally be presumed to give equivalent protection to fundamental rights as the ECHR system. Nonetheless this test ‘should be assessed in the light of the specific circumstances of each case’.

Then the court points out an important consideration it has to make, whether the protection of fundamental rights in this case is manifestly deficient, and if ‘in that case the interest of international cooperation would be outweighed by observance of the Convention as a constitutional instrument of European public order in the field of human rights. This international cooperation is based on the principle of mutual trust, which is based on the principle of mutual recognition, the ECtHR is aware of the importance of this principle for the construction of an area of freedom, security and justice (AFSJ), written down in art. 67 TFEU. On the other hand this principles could ‘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 to fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient. Then the court made clear there was no such manifest deficiency in this particular case. Article 34 (2) of the regulation writes that a judgment shall not be recognised, if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange his defence, unless the defendant failed to commence proceedings to challenge the judgement when it was possible for him to do so. The court rules the applicant his actions do not meet the second requirement. There was a possible remedy to challenge the Cypriot court, but the applicant did not. The ECtHR does regret the Latvian Supreme Court did not pay attention to the issue of the burden of proof with regard to the existence and availability of a remedy in the State of origin. Still it concluded this shortcoming had not been so important as to warrant a rebuttal of equivalent protection. That there is a safeguard in Latvian Civil Procedure Law, section 230 (1) that lays the burden of proof at the Latvian courts does not change that conclusion. According to the ECtHR the requirement is ‘laudable in so far as it affords an additional safeguard, which facilitates the exercise of litigants rights’. The ECtHR followed the European Commission in its submission, which stated ‘neither the provision nor EU law governed the admissibility of evidence and its assessment by the domestic courts’.

Under the circumstances in the case there could have been cause to find a manifest deficiency that could lead to the presumption of equivalent protection being rebutted. The reason the court did not find such a deficiency could be a potential affection of the mechanism of mutual trust. The ECJ stated in Opionion 2/13 that the Member States could apply the mechanism automatically and mechanically. The Strasbourg Court mentioned that always must be verified if fundamental rights protection is not manifestly deficient in order to ensure the protection of these rights within the European system. Despite this, no violation has been found because of a specific feature of the case at hand. The court did not reason clearly on the issue of the burden of proof. The fact that European law does not regulate this issue, but Latvian law does, could mean the Supreme Court actually had some ‘margin of manoeuvre’. This would have meant the State remained fully responsible for the use of the convention, a complete different outcome.

This judgement is notable for the following reasons. In the first place the court ruled the system of preliminary rulings of art. 67 TFEU complies with the Bosphorus presumption of equivalent protection. Secondly this case note shows how the ECtHR draws a line between the respect for fundamental rights on the one hand and the effectiveness of the AFSJ on the other. According to article 1 of the ECHR the main obligation of the contracting States is the respect of Fundamental rights. By affirming the principles laid down in the Bosphorus case, such as the manifest deficiency test, the court ensures the protection of these rights. Either way the court did not find a breach of fundamental rights and regrettably vaguely argued this outcome. Nevertheless the judgement showed the ‘manifest deficiency test’ is still alive and well. Because of that the European Member States cannot execute EU law without respect of fundamental rights.

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