Stian Øby Johansen, a PhD fellow at the University of Oslo Faculty of Law*, examines a recent case before the European Court of Human Rights (ECtHR). On May 23, 2016, the court delivered its judgment in the case of Avotiņš v. Latvia, marking the first detailed analysis of the “Bosphorus presumption” since the Court of Justice of the European Union (CJEU) rejected a draft agreement for EU accession to the European Convention of Human Rights (ECHR). This case also provides insight into the ECtHR’s perspective on the EU law principle of mutual trust, a concept increasingly important to the CJEU.

The Bosphorus Presumption and Opinion 2/13

The Bosphorus presumption, established in a 2005 ECtHR judgment (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland), holds that while EU member states are accountable under the ECHR for all actions of their institutions, there is a presumption of equivalent protection of ECHR rights within the EU system, despite the EU not being a party to the ECHR. This presumption acknowledges the significance of international collaboration and aims to balance this with individual rights protection. The presumption can be challenged if, in a specific case, the protection of Convention rights is clearly inadequate.

The CJEU’s rejection of EU accession to the ECHR in Opinion 2/13, partly based on concerns about the impact on the principle of mutual trust, raised questions about potential modifications to the Bosphorus presumption. Guido Raimondi, the ECtHR President, hinted at potential adjustments in response to this rejection. However, the ECtHR’s judgment in Avotiņš v. Latvia demonstrates that the Bosphorus presumption remains applicable, even in a case involving EU law’s mutual recognition obligations. This is significant as the CJEU, in Opinion 2/13, argued that EU accession to the ECHR could undermine the balance and autonomy of EU law due to potential conflicts with the principle of mutual trust.

Background to the Case

In 1999, Latvian national Pēteris Avotiņš entered into a loan agreement governed by Cypriot law with a company called F.H. Ltd. Avotiņš was ordered by a Cypriot court in 2004 to repay the loan, a judgment he claims he was unaware of until 2016. F.H. Ltd. sought enforcement of this judgment in Latvia. Avotiņš contested this enforcement, arguing violations of both the EU’s Brussels I regulation on recognition of civil judgments and Latvian civil procedure rules. The Latvian Supreme Court ultimately ruled in favor of F.H. Ltd., upholding the Cypriot judgment.

The Case Before the ECtHR

Avotiņš filed complaints against both Latvia and Cyprus before the ECtHR, alleging an infringement of his right to a fair hearing. While the application against Cyprus was dismissed due to exceeding time limits, the application against Latvia proceeded. The ECtHR acknowledged the applicability of Article 6 of the ECHR (right to a fair trial) in enforcing foreign judgments, emphasizing that enforcement should not occur if the affected party hasn’t had a chance to challenge the fairness of the original proceedings.

The ECtHR then assessed the Bosphorus presumption’s relevance to the case, concluding that the presumption applied. The Court found that the Latvian Supreme Court had no leeway in implementing the EU law obligation and that the potential of EU law’s supervisory mechanisms had been sufficiently utilized.

The ECtHR next examined whether there was a “manifest deficiency” in safeguarding fundamental rights. Despite acknowledging the importance of the mutual trust principle in EU law, the ECtHR stressed that implementing this principle should not infringe upon fundamental rights. The Court highlighted a potential conflict: the principle of mutual trust, requiring domestic courts to presume that other member states have upheld fundamental rights, limits their ability to review potential violations, a situation potentially at odds with the ECHR’s requirement for a robust review of serious allegations of fundamental rights violations.

The ECtHR emphasized that despite these limitations, domestic courts, as guardians of the ECHR, must ensure no manifest deficiency in fundamental rights protection. The Court ruled that while the mutual recognition system within the Brussels I regulation is generally compatible with Article 6 of the ECHR, the Latvian Supreme Court’s interpretation and application of the regulation raised concerns. The ECtHR found that Avotiņš had presented strong arguments regarding procedural flaws in the Cypriot judgment. However, due to specific circumstances in this case, namely the possibility of appealing the Cypriot judgment, the ECtHR concluded that there was no “manifest deficiency” in the protection of fundamental rights.

Comments

This judgment is significant for several reasons. Firstly, it reaffirms the validity of the Bosphorus presumption post-Opinion 2/13. Secondly, it demonstrates the ECtHR’s willingness to critically examine potential conflicts between the principle of mutual trust and the protection of fundamental rights. This is evident in the Court’s near-finding of a “manifest deficiency.” Lastly, the judgment highlights the complex interplay between EU law and the ECHR, particularly in cases involving mutual recognition obligations. Despite potential limitations imposed by the principle of mutual trust, the ECtHR underscores the importance of ensuring that fundamental rights are not compromised, even in the context of EU law.

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Photo credit: ukhumanrightsblog.com

*Reblogged with permission from the Øby-kanalen blog