Article 51 - Field of application
Article 52 - Scope and interpretation
Article 53 - Level of protection
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
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.
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 in Latvia. He alleged a violation of his right to a fair hearing guaranteed by Article 6 § 1 of the Convention.
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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 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 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.
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. (...)
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 (...).
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.
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. (...)
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.
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. (...)
Outcome of the case:
For these reasons, the Court
Holds, by sixteen votes to one, that there has been no violation of Article 6 § 1 of the Convention.
Paragraphs referring to the EU Charter in the Court Judgment:
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 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.
Paragraphs referring to the EU Charter in the dissenting opinion of Judge Sajó:
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 European Union 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 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.
[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.
