FOURTH SECTION

CASE OF AVOTIÅ…Å  v. LATVIA

( Application no. 17502/07 )

JUDGMENT

STRASBOURG

25 February 2014

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 23/05/2016

This judgment may be subject to editorial revision.

In the case of Avotiņš v. Latvia ,

The European Court of Human Rights (Fourth Section) , sitting as a Chamber composed of:

Päivi Hirvelä, President, Ineta Ziemele,

George Nicolaou

Ledi Bianku,

Zdravka Kalaydjieva,

Vincent A. De Gaetano,

Krzysztof Wojtyczek, judges, and Françoise Elens-Passos , Section Registrar ,

Having deliberated in private on 3 September 2013 and on 14 and 28 January 2014 ,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

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 ” ) , initially against the Republic of Cyprus and the Republic of Latvia, by a Latvian national, Mr Pēteris Avotiņš ( “ the applicant ” ), on 20 February 2007 .

2 . The applicant was represented by Mr J. Eglītis , a lawyer practising in Riga. The Latvian Government ( “ the Government ” ) were represented initially by their former Agent, Ms I. Reine , and subsequently by their current agent, Ms K . L īce.

3 . The applicant a lleged , in particular, that a Cypriot court had ordered him to repay a contractual debt without summoning him to appear in the proper manner and without securing the exercise of his defence rights . He also complained that, by ordering the enforcement of that judgment in Latvia, the competent Latvian court had breached his right to a fair hearing guaranteed by Article 6 § 1 of the Convention.

4 . In a partial decision of 30 March 2010 the Court (Third Section) declared the application inadmissible in so far as it concerned Cyprus, for failure to comply with the six-month time-limit (Article 35 § 1 of the Convention). In so far as the application concerned Latvia, the Court decided to give notice to the Government of the complaint under Article 6 § 1 of the Convention , and declare d the remainder of the application inadmissible. The applicant and the Government each filed written observations on the admissibility and merits of the case (Rule 5 4 § 2 (b) of the Rules of Court ) .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Proceedings before the Limassol District Court

5 . On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law , signed a deed of acknowledgement of debt 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 document also contained choice of law and jurisdiction clause s according to which it was to be governed “ in all re spects ” by Cypriot law and the Cypriot courts were to have non-exclusive jurisdiction to hear any disputes arising out of it.

6 . In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court ( Επαρχιακό Δικαστήριο Λεμεσού , C yprus ), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the debt together with interest.

7 . In an order of 27 June 2003 the District Court summoned the applicant to appear before it. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country , requiring him to appear within thirty days from the date of service . In that connection t he claimant company ’ s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and that a summons could be served on him at that address. The applicant, for his part, contended that it had been objectively impossible for him to receive the summons at th at address, which was simply the address at which he had signed the loan contract and the deed of acknowledgement of debt in 1999 and was not his home or business premises .

8 . On 7 October 2003 the Limassol District Court ordered that the applicant be summoned at the above-mentioned address. It summoned him to appear or to come forward within thirty days of receiving the summons, failing which all future announcements concerning the case would be posted on the court ’ s noticeboard. 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 was sent by recorded delivery on 16 November 2003 to the address in G. Street in Riga. It also showed that the legal firm had received a post office slip confirming that the letter had been received by the applicant on 18 November 2003 (the Latvian national holiday and therefore a non-working day in Latvia). The applicant claimed never to have received the summons.

9 . As the applicant did not appear, the Limassol District Court, ruling in his absence on 24 May 2004, 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, which was finalised on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment itself made no reference to the fact that it was final or to the available remedies.

B. Recognition and enforcement proceedings in the Latvian courts

10 . 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 protective measure applied . It stated that the applicant was the owner of real property in Garkalne ( a district of Riga) 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 and record it in the land register. Lastly, it requested that the applicant be ordered to pay the costs. In its request the company gave as the applicant ’ s place of residence a n address in Č. Street in Riga which differed from the address previously notified to the Cypriot court.

11 . On 28 April 2005 the Latgale District Court adjourned examination of the company ’ s request , pointing to a series of substantive defects which the company was given one month to correct . In particular, the court noted that the company had omitted to explain why it had referred to the address in Č. Street, when the applicant ’ s presumed address , as it had featured hitherto in the case , was in G. Street.

12 . On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that according to the data taken from the register of residents ( Iedzīvotāju reģistrs ), the address in Č. Street was the applicant ’ s official ly declared home address. As to the address in G. Street, the company ’ s representatives had assumed it to be the applicant ’ s actual residence.

13 . In an order of 31 May 2005 the Latgale District Court ruled that the corrigendum submitted by F.H. Ltd. was insufficient to remedy all the defects in its request . The court declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court ( RÄ«gas apgabaltiesa ) , which set aside the impugned order on 23 January 2006 and remitted the case to the District Court, instructing it to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005.

14 . In an order of 27 February 2006 issued without the parties being present, the Latgale District Court allowed 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.

15 . It was n ot until 16 June 2006 that the applicant learn t – by chance, according to his account – of the existence of both the Cypriot court judgment of 24 May 2004 and the Latvian court order of 27 February 2006. He did not attempt to challenge the Cypriot judgment before the Cypriot courts. However, he lodged a so-called ancillary appeal ( blakus sūdzība ) against the above-mentioned order with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal . In that connection the applicant observed that there was nothing in the case file to indicate that he had been summoned to appear at the hearing of 27 February 2006 or that he had been notified of the order issued that day. Accordingly, the thirty- day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had become aware of the order in question.

16 . In an order of 13 July 2006 the Latgale District Court granted the applicant ’ s request and extended the time -limit for lodging an appeal . It noted, inter alia , as follows:

“ ... I t is clear from the court order of 27 February 2 00 6 that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties, on the basis of the documents furnished by the claimant [F.H. Ltd.]. At the same time the order states that it is open to the applicant to appeal against it within thirty days from the date of receipt of the copy [of that order], in accordance with section 641 ( 2 ) of the Civil Procedure Law .

The court considers the circumstances to which the applicant , P. Avotiņš, refer s , to be established, namely the fact that he did not receive the order ... of 27 February 2006 until 16 June 2006 , this being attested to by the reference in the list of consultations [appended to the case file] , and by the fact that the order, served [on the applicant] by the court, was returned on 10 April 2006 ... I t is apparent from the documents appended to the appeal that the applicant has not lived at his declared address in [Č.] Street since 1 May 2004; this confirms ... the statement made by his representative at the hearing, according to which the applicant no longer lives at the above-mentioned address.

Accordingly, the thirty- day period should ... run from the date on which the applicant received the order in question ...

At the same time , the court does not accept the view of the representative of [F.H. Ltd.] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his home address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact of not complying with the legislation on registration of residence is not sufficient to justify the potential consequences if the court were to refuse to allow the applicant to exercise the fundamental rights guaranteed by the State as regards access to the courts and judicial protection, including the right to appeal against a decision. ... ”

17 . In his grounds of appeal before the Riga R egional Court the applicant argued that the recognition and enforcement of the Cypriot judgment in Latvia was in breach of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and and commercial matters ( known as the “ Brussels I Regulation ” , hereafter “ the Regulation ” ) and of the relevant provisions of the Lat v ian Civil Procedure Law . He submitted two arguments in that regard .

18 . First, the applicant observed that in accordance with Arti cle 34(2) of the R egulation ( corresponding in substance to section 637 ( 2 ) , third sub ‑ paragraph, of the Latvian Civil Procedure Law), a judgment given in default in another Member State could 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 for his defence. In the applicant ’ s view, those provision s had been breached in his case. The applicant maintained that both the Cypriot lawyers who had represented the claimant company in the Limassol District Court and the Latvian lawyers who had represented it in the Latvian courts had been perfectly aware of his business address in Riga. He observed in that connection that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office; as to the Latvian lawyers, he had met them in person. Therefore, they must all have been aware of his business address. Furthermore, the summons could have been sent to the applicant ’ s home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and his property there was entered under his name in the land register, which the lawyers could have consulted. However, instead of having the summons sent to one of those addresses, which were known and accessible, the lawyers had given the courts an address where it was objectively impossible to reach him .

19 . Second, the applicant observed that , under the terms of A rticle 38(1) of the R egulation and section 637 ( 2 ) , second sub-paragraph, of the Latvian Civil Procedure Law , a judgment had to be enforceable in the State of origin in order to be enforceable in the M ember S tate requested. In the instant case, there had been a threefold breach of th o se requirements. Firstly, the requesting party had only submitted the text of the Cypriot court judgment to the Latvian court, and not the certificate required in accordance with Annex V to the Regulation . In that connection the applicant acknowledged that under Article 55(1) of the Regulation the court in which enforcement was sought could, in some circumstances , exempt the requesting party from the obligation to produce a certificate; however, in the present case, the Latgale District Court had omitted to explain whether and for what reason it considered that the requesting party could be exempted from that obligation. Secondly, the Cypriot judgment itself had contain ed no reference to its entry into force or possible remedies. La st ly, in order to be enforced in accordance with the R egulation, a judgment had to be enforceable in the country of origin; however, none of the documents produced by the company demonstrated that the judgment of 24 May 2004 was enforceable in Cyprus. T he applicant therefore concluded that the judgment could under no circumstances be recognised and enforced in Latvia.

20 . 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.

21 . F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it at a hearing on 31 January 2007. At the start of the hearing the appellant company submitted copies of several documents to the Senate , including the certificate provided for by A rticle 54 of the R egulation and by Annex V thereto , dated 18 January 2007 and signed by an acting judge of the Limassol District Court. According to the certificate, the document instituting the proceedings had been served on the applicant on 27 November 2003. The last part of the certificate, intended for the name of the person against whom the judgment was enforceable, had been left blank . When asked to comment on these documents, the applicant ’ s lawyer argued that they were clearly insufficient to render the judgment enforceable.

22 . In a final judgment of 31 January 2007 the Senate quashed and annulled the Regional Court judgment of 2 October 2006 and allowed F.H. Ltd. ’ s claims. It 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. The relevant extracts from the judgment read as follows :

“ ... I t is clear from the documents in the case file that the Limassol District Court judgment was made final. This is confirmed by the explanations provided by both parties at the R egional Court hearing on 2 October 2006, according to which no appeal had been lodged against the judgment, and by the certificate issued on 18 January 2007 ... A s [the applicant] did not appeal against the judgment, his lawyer ’ s submissions to the effect that [he] was not duly notified of the examination of the case by a foreign court are of no importance .

Having regard to the foregoing, the Senate accepts tha t the judgment of the Limassol D istrict Court (Cyprus) of 24 May 2004 should be recognised and enforced in Latvia.

Article 36 of the Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance; in accordance with section 644(1) of the Civil Procedure Law, once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by the same Law. ... ”

23 . On the basis of the Senate judgment the Latgale D istrict C ourt issued a writ of execution ( izpildu raksts ) on 14 February 2007 . The applicant complied immediately with the terms of the writ 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. He then requested that the charge on his property in Garkalne be lifted . In two orders dated 24 January 2008 the judge with responsibility for land registers ( Zemesgrāmatu nodaļas tiesnesis ) refused the request. The applicant lodged an appeal on points of law with the Senate of the Supreme Court which, in an order of 14 May 2008, lifted the charge on the property.

II. RELEVANT LAW AND PRACTICE

A. Relevant European Union law materials

1. Regulation No 44/2001

24 . 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 ” ) entered into force on 1 March 2002, replacing the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It is binding on all the European Union Member States with the exception of Denmark. Recitals 16 to 18 of the Regulation read as follows :

“ (16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.

(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.

(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected. ”

25 . The relevant Articles of the Regulation provide :

Article 33

“ 1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised .

... ”

Article 34

“ A judgment shall not be recognised:

...

2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

... ”

Article 35

“ 1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.

2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.

3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. ... ”

Article 36

“ Under no circumstances may a foreign judgment be reviewed as to its substance. ”

Article 38 ( 1 )

“ A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there .”

Article 54

“ The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation . ”

2. Relevant case-law of the Court of Justice of the European Communities (European Union)

26 . In the case of Klomps v Michel ( Case C- 166/80, judgment of 16 June 1981, Re ports p. 1593), the Court of Justice further defined the scope of the guarantees contained in Article 27 ( 2 ) of the Brussels Convention (corresponding to Article 34(2) of the Brussels I Regulation). It held that the provision in question remained applicable where the defendant had lodged an objection against a judgment given in default and a court of the State in which the judgment was given had held the objection to be inadmissible on the ground that the time for lodging an objection had expired. Furthermore, even if the court in which the judgment was given had held, in separate adversarial proceedings, that service had been duly effected, Article 27 (2) still required the court in which enforcement was sought to examine whether service had been effected in sufficient time to enable the defendant to arrange for his defence.

27 . In ASML Netherlands BV v Semiconductor Industry Services GmbH (SEMIS) ( Case C-283/05, judgment of 14 December 2006, Reports p. I ‑ 12041), the Cour t of J ustice held that “ Article 34(2) of Regulation No 44/2001 is to be interpreted as meaning that it is ‘ possible ’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given. ”

28 . In Apostolides v Orams ( Case C-420/07, judgment of 28 April 2009), the Cour t of J ustice held as follows :

“ 73. ... [I]t is apparent from recitals 16 to 18 in the preamble to Regulation No 44/2001 that the system of appeals for which it provides against the recognition or enforcement of a judgment aims to establish a fair balance between, on the one hand, mutual trust in the administration of justice in the Union, which justifies judgments given in a Member State being, as a rule, recognised and declared enforceable automatically in another Member State and, on the other hand, respect for the rights of the defence, which means that the defendant should, where necessary, be able to appeal in an adversarial procedure against the declaration of enforceability if he considers one of the grounds for non-enforcement to be present.

74 . The Court has had occasion, in Case C-283/05 ASML [2006] ECR I-12041, to make clear the differences between Article 34(2) of Regulation No 44/2001 and Article 27(2) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ... .

75 . Article 34(2) of Regulation No 44/2001, unlike Article 27(2) of the Convention, does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of the defence are effectively respected ... .

76 . Under Articles 34(2) and 45(1) of Regulation No 44/2001, the recognition or enforcement of a default judgment must be refused, if there is an appeal, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge that judgment before the courts of the Member State of origin when it was possible for him to do so.

77 . It is clear from the wording of those provisions that a default judgment given on the basis of a document instituting proceedings which was not served on the defendant in sufficient time and in such a way as to enable him to arrange for his defence must be recognised if he did not take the initiative to appeal against that judgment when it was possible for him to do so.

...

80 . In the light of the foregoing, the answer to the ... question [referred for a preliminary ruling] is that the recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No 44/2001 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence. ”

29 . Lastly, in Trade Agency Ltd v Seramico Investments Ltd ( Case C ‑ 619/10, judgment of 6 September 2012), the Cour t of J ustice ( known as the Cour t of J ustice of the European Union since the entry into force of the Treaty of Lisbon on 1 December 2009) held that “ Article 34(2) of Regulation No 44/2001 ... must be interpreted as meaning that, where the defendant brings an action against the declaration of enforceability of a judgment given in default of appearance in the Member State of origin which is accompanied by the certificate, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence. ”

B. Relevant domestic law

30 . At the time of the events the relevant sections of the Latvian Civil Procedure Law ( Civilprocesa likums ) read as follows :

Section 637 ( 2 )

“ A foreign judgment shall not be recognised if one of the following grounds for non-recognition exists:

...

( 2) the foreign judgment has not become enforceable in accordance with the law;

( 3) the defendant was unable to defend his or her rights, particularly where judgment was given in default and the defendant was not duly and promptly summoned to appear before the court, unless he or she had the opportunity to appeal against the judgment and did not do so;

... ”

Section 644

“ 1 . After it has been recognised, a foreign judgment which is enforceable in the State in which it was given shall be enforced in accordance with the present Law .

2 . With regard to the rules on the enforcement of judgments laid down by Council Regulation No 44/2001 ..., the provisions of [this] Chapter ... concerning recognition of judgments given by foreign courts shall apply in so far as [the Regulation] so provides . ”

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

31 . The applicant alleged that by enforcing the judgment of the Limassol District Court (Cyprus), which in his view was clearly unlawful as it had been given in breach of his defence rights, the Latvian courts had infringed A rticle 6 § 1 of the Convention on the right to a fair hearing. Article 6 § 1, in so far as relevant to the present case , provides:

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”

A. Admissibility

32 . The Government submitted that the applicant had not suffered any significant disadvantage and that his application should therefore be declared inadmissible pursuant to Article 35 § 3 (b) of the Convention. In the Government ’ s view, the applicant had not disputed either the existence of his contractual debt to the company F.H. Ltd. or his failure to pay it. Therefore, whatever the Court ’ s decision might be , it would in no way affect the validity of that debt. Furthermore, the applicant had not made clear what arguments, grounds and evidence he had been prevented from raising before the lower courts ; accordingly, there was no basis for his assertion that the proceedings before the Senate of the Supreme Court had disregarded his legitimate interests. Lastly, the Government were of the view that examination of the present case would add nothing new since the C ourt had already given detailed rulings on issues that were identical in substance to those raised by the applicant.

33 . The Government further submitted that the applicant could have challenged the provisions of the C ivil P rocedure Law applied by the courts in his case by means of a constitutional complaint ( konstitucionālā sūdzība ) to the Constitutional Court ( Satversmes tiesa ).

34 . The applicant simply denied the Government ’ s assertion that he had accepted the validity of the debt in question; on the contrary, he stressed that he had paid the debt a long time ago.

35 . The Court reiterates that an application may be rejected on the basis of the admissibility criterion provided for in Article 35 § 3 (b) of the Convention as amended by Protocol No. 14, which entered into force on 1 June 2010. The provisions of Article 35 § 3 relevant to the present case read as follows:

“ 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. ”

36 . As regards the existence of “ significant disadvantage ” , the Court observe s at the outset that the case concerns the re payment of a total sum equivalent to around EUR 129,000 (see paragraph 23 above), which, in itself, is far from modest (compare Sancho Cruz and 14 other “ Agrarian Reform ” cases v. Portugal , nos. 8851/07, 8854/07, 8856/07, 8865/07, 10142/07, 10144/07, 24622/07, 32733/07, 32744/07, 41645/07, 19150/08, 22885/08, 22887/08, 26612/08 and 202/09 , § § 33-35 , 18 January 2011 ) . As to the Government ’ s assertion that the applicant had implicitly acknowledged the validity of the debt claimed by F . H . Ltd . , the Court notes that this is not corroborated by any evidence in the file and that the applicant himself disputed it . His complaint , indeed, consists in alleging that the Latvian courts ordered the enforcement of a judgment given by a Cypriot court although he had not been correctly summoned to appear before the latter in order to defend his case. Accordingly, the C ourt fails to see how, at this stage, the applicant could be criticised for not having challenged the validity of the debt in question at the domestic level, given that his complaint is precisely that he was not in a position to do so ( see , mutatis mutandis , Joos v. Switzerland , no. 43245/07 , § 19, 15 N ovemb e r 2012, and, conversely, Shefer v . Russi a (d e c.), no. 45175/04, §§ 24-25, 13 March 2012). I t therefore considers that the first condition laid down in Article 35 § 3 (b) of the Convention, namely the absence of significant disadvantage to the applicant , has not been satisfied.

37 . A s to whether respect for human rights as def ined in the Convention and the P rotocols thereto requires an examination of the application on the merits, the Court notes that the application concerns an issue of importance at both domestic and European level, namely compliance with the requirements of Article 6 § 1 of the Convention in the context of the application of the Brussels I Regulation by Contracting States which are also Member States of the European Union.

38 . In so far as the Government criticised the applicant for not challenging the relevant provisions of the Civil Procedure Law before the Constitutional Court, this argument can be understood as an objection of inadmissibility for failure to exhaust domestic remedies for the purposes of Article 35 § 1 of the Convention. In that connection the Court has previously held that , in Latvia , an individual constitutional complaint constitute s a remedy to be exhausted where the complaint in question concern s a legislative provision or regulation which the applicant consider s to be incompatible per se w ith the Convention ( see GriÅ¡ankova and GriÅ¡ankovs v . Latvia (d e c.), no. 36117/02, ECHR 2003 ‑ II). By contrast, this remedy has been held not to be effective where the alleged violation result s from the supposedly erroneous interpretation or application of a domestic legal provision which, in itself , is not alleged to be unconstitutional or incompatible with the Convention ( see Liepājnieks v . Latvia (d e c.), no. 37586/06, § 73, 2 November 2010, and Savičs v . Latvia , no. 17892/03 , §§ 113-14, 27 November 2012). In the present case, the applicant did not at any point argue before the C ourt that the sections of the Civil Procedure Law applied in his case were in themselves contrary to Article 6 § 1 or to another provision of the Convention.

39 . In view of the foregoing, the C ourt concludes that the Government ’ s objections should be dismissed. It notes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It therefore declares it admissible.

B. Merits

1. The parties ’ submissions

( a) The Government

40 . The G overnment began by reiterating the argument they had raised in connection with the admissibility of the application, to the effect that the applicant had never disputed the existence of his contractual debt. As he had not paid it within the time - limit laid down in the deed of acknowledgement of debt, he could and should have foreseen that proceedings would be brought against him in the competent Cypriot court for recovery of the debt, and that the Cypriot court ’ s judgment would be subjected to the recognition and enforcement procedure in the Latvian courts.

41 . The G overnment submitted that the proceedings before the Senate of the Supreme Court culminating in the judgment of 31 January 2007 had been fair. In particular, the Senate had correctly applied the relevant provisions of the Regulation and the Latvian Civil Procedure Law. As required by Article 36 of the Regulation, the Senate had not reviewed the Cypriot judgment on the merits. It was true that Article 34(2) of the Regulation and section 637(2) , third sub-paragraph, of the Civil Procedure Law precluded recognition of a foreign judgment given in default if the defendant had not been duly and promptly summoned to appear before the court hearing the case on the merits . However, that exception was subject to the following condition : “ unless he had the opportunity to appeal against the judgment and did not do so ” . As the applicant had not appealed against the Limassol D istrict Court judgment of 24 May 2004 , and there had been nothing to prevent him from so doing, the above-mentioned exception did not apply. The Government submitted that they were not competent to comment on Cypriot domestic law: however, it could certainly be presumed that the judgment at issue had been open to appeal in Cyprus (if necessary, by requesting an extension of the time -limit for appealing after it had expired). Moreover, in the Government ’ s submission, since the applicant had accepted the choice of law and jurisdiction clause s which made the deed of acknowledgement of debt subject to Cypriot law and to the jurisdiction of the Cypriot courts, he must be presumed to be very familiar with the relevant provisions of Cypriot law. In that connection the Government produced the record of the hearing of the Riga Regional Court of 2 October 2006, according to which the applicant ’ s lawyer had stated twice that his client had not appealed against the Cypriot judgment.

42 . The Government went on to point out that at the Senate hearing of 31 January 2007 the appellant company had f ur nished the document referred to in Articles 54 and 55 of the Regulation and Annex V thereto , duly certified and attesting to the enforceability of the Cypriot judgment . In those circumstances, the Senate of the Supreme Court had had no reason to refuse enforcement of the judgment. Th e Government also contended that the recognition and enforcement proceedings, and in particular the proceedings before the Senate, had been fair and had respected the principle of equality between the parties.

( b) The applicant

43 . The applicant contested the Government ’ s assertion that he had accepted the validity of the debt at issue; in any event, he considered this question to be irrelevant. In the present case the Senate of the Supreme Court had ordered the enforcement of the Limassol District Court judgment of 24 May 2004 despite the fact that he had not been summoned in the correct manner and had been unable to defend his rights before that court. This had been in breach of Article 34(2) of the Regulation, section 637(2) , third sub-paragraph, of the Latvian Civil Procedure Law and Article 6 § 1 of the Convention. In so far as the Government criticised him for not having appealed against the impugned judgment, the applicant pointed out that he had learned of the existence of that judgment on 16 June 2006, that is, over two years after it had been delivered, and that the judgment itself had contained no reference to the available remedies and the time-limits for exercising them. Moreover, the Government themselves had not cited any specific remedy under Cypriot law in respect of the judgment at issue.

44 . The applicant also alleged irregularities in the way in which the recognition and enforcement proceedings had been conducted in the Latvian courts. For instance, the Senate of the Supreme Court had not correctly applied the relevant provisions of the Civil Procedure Law , according to which ancillary appeals had to be examined under the ordinary appeals procedure rather than the procedure for appeals on points of law, and the documents produced by the appellant company at the Senate hearing had not been duly certified.

2. The Court ’ s assessment

45 . The Court reiterates that, in disputes whose outcome is decisive for civil rights , Article 6 § 1 of the Convention is applicable to the execution of foreign final judgments ( see Sholokhov v . Arm e ni a and Moldova , no. 40358/05, § 66, 31 July 2012, and McDonald v . France (d e c.), no. 18648/04, 29 April 2008). It is not disputed that the Limassol District Court judgment of 24 May 2004 ordering the applicant to pay a contractual debt , together with interest and costs and expenses , concerned the substance of a “ civil ” obligation on the part of the applicant. Article 6 § 1 is therefore applicable in the present case.

46 . The Court further notes that the judgment on the merits of 24 May 2004 was given by a Cypriot court and that the Latvian courts ordered its enforcement on Latvian territory. However, as the complaint in respect of Cyprus was declared inadmissible as being out of time (see the partial decision of 3 March 2010), the application, at this stage of the procedure, concerns Latvia alone. In these circumstances the Court does not have jurisdiction ratione personae to determine whether the Limassol District Court complied with the requirements of Article 6 § 1. I t s task is to ascertain whether , by enforcing the Cypriot judgment, the Latvian courts acted in accordance with that provision ( see , mutatis mutandis , Pellegrini v . Ital y , no. 30882/96, §§ 40-41, 2001 ‑ VIII).

47 . In the present case the applicant allege d that the Senate of the Supreme Court had fail ed to comply with Article 34(2) of the Regulation and with the corresponding provision s of the Civil Procedure Law. In that connection the C ourt emphasises that , under Article 19 of the Convention, it has jurisdiction only to ensure observance of the rights and freedoms guaranteed by the Convention itself and its Protocols. Therefore, it does not have jurisdiction to rule form al ly on compliance with domestic law, other international treaties or European Union law (see, for example, S.J. v . Luxembourg , no. 34471/04, § 52, 4 March 2008). In particular, the task of interpreting and applying the provisions of the Regulation falls firstly to the Court of Justice of the European Union, in the context of a referral for a preliminary ruling, and secondly to the domestic courts acting in their capacity as courts of the European U nion, that is to say , applying the interpretation given by the Court of Justice. The jurisdiction of the European Court of Human Rights is confined to verifying whether the requirements of Article 6 § 1 of the Convention have been satisfied in the circumstances of the case. T he Court has previously held that the protection of fundamental rights afforded by the European Union is in principle equivalent to that provided by the Convention ( see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Åžirketi v . Ir e land [GC], no. 45036/98, §§ 160 ‑ 65, ECHR 2005 ‑ VI ).

48 . The Court further reiterates that the principle of equality of arms is an important component of the concept of a “ fair hearing ” within the meaning of Article 6 § 1. It requires a “ fair balance ” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage vis ‑ Ã ‑ vis their opponent or opponents ( see , for ex a mple, Gorraiz Lizarraga and Others v. Spain , no. 62543/00, § 56, ECHR 2004 ‑ III). As these principles apply to all aspects of procedural law in the Contracting State s , they are also applicable in the specific sphere of service of judicial documents on the parties ( see Miholapa v . Latvia , no. 61655/00, § 23, 31 May 2007, and Övüş v . Tur key , no. 42981/04 , § 47, 13 October 2009 ). However, Article 6 § 1 of the Convention cannot be interpreted as prescribing a specific form of service of documents ( see Orams v . Cyprus (d e c.), no. 27841/07, 10 June 2010).

49 . The Court notes that, according to the P reamble to the Brussels I Regulation, that instrument is based on the principle of “ mutual trust in the administration of justice ” in the European Union, which implies that “ the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation ” ( see paragraph 24 above ). In that connection the Court reiterates that the observance by the State of its legal obligations arising out of membership of the European Union is a matter of general interest ( see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi cited above , §§ 150-51, and Michaud v . France , no. 12323/11, § 100, ECHR 2012) . T he Senate of the Latvian Supreme Court was therefore under a duty to ensure the recognition and the rapid and effective enforcement of the Cypriot judgment in Latvia.

50 . In the Latvian courts the applicant argued that the summons to appear before the Limassol D istrict Court and the statement of claim by the company F.H. Ltd. had not been properly served on him in a timely manner, with the result that he had been un able to defend his case . Consequently, in his view, the requ est for recognition of the judg ment should have be en refused on the basis of Article 34(2) of the Regulation. In its judgment of 31 January 2007 the Senate of the Supreme Court dismissed all the applicant ’ s arguments – and hence ruled against the application of Article 34(2) of the Regulation – finding that “ [a] s [the applicant] did not appeal against the judgment, his lawyer ’ s submissions to the effect that [he] was not duly notified of the examination of the case by a foreign court are of no importance ” . This corresponds in substance to the interpretation given to the aforementioned provision by the Court of Justice of the European Communities in Apostolides v Orams , according to which “ the recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No 44/2001 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence ” (see paragraph 28 above).

51 . The Court observes that, indeed, the applicant did not even attempt any kind of remedy against the Limassol District Court judgment of 24 May 2004 . The C ourt is not convinced by the reasons advanced by the applicant to justify that omission. It is clear from the facts of the case that the applicant, himself an investment consultant, borrowed a sum of money from a Cypriot company and signed a deed of acknowledgement of debt governed by Cypriot law containing a clause conferring jurisdiction on the Cypriot courts. As he accepted his contractual liability of his own free will, he could also have been expected to familiarise himself – if need be with appropriate advice – with the legal consequences of any failure to repay the debt , including the manner in which proceedings would be conducted before the Cypriot courts. The fact that the judgment at issue did not contain any reference to the available remedies is likewise not decisive in the present case, as the applicant was free to make enquiries himself or through a lawyer as to the remedies available in Cyprus, after he had become aware of the judgment in question. Accordingly, the C ourt considers that the applicant, as a result of his own actions, forfeited the possibility of pleading ignorance of Cypriot law, and that the onus was on him to produce evidence of the in existence or ineffectiveness of any possible remedy; he did not do so either before the Senate of the Latvian Supreme Court or indeed before the European Court of Human Rights.

52 . Having regard to all the specific circumstances of the case, and in particular the interest of the Latvian courts in ensuring observance of the legal obligations arising out of Latvia ’ s membership of the European Union, the Court considers that in dismissing the applicant ’ s arguments simply by referring to the fact that he had not appealed against the judgment of the Limassol District Court, the Senate of the Latvian Supreme Court took sufficient account of the applicant ’ s rights under Article 6 § 1 of the Convention.

53 . Lastly, as regards the applicant ’ s remaining allegations under Article 6 § 1, and in so far as it has jurisdiction to examine the allegations, the Court does not find any appearance of a violation of the rights guaranteed by that provision.

54 . Accordingly, there has been no violation of Article 6 § 1 in the present case.

FOR THESE REASONS, THE COURT

1. Dismisses , unanimously, the Government ’ s preliminary objections ;

2. D e clare s , unanimously , the remainder of the application admissible ;

3. Holds , by four votes to three, that there has been no violation of Article 6 § 1 of the Convention .

Done in French, and notified in writing on 25 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Françoise Elens-Passos Päivi Hirvelä Registrar Pr e sident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Ziemele, Bianku and De Gaetano is annexed to this judgment.

P.H. F.E.P.

JOINT DISSENTING OPINION OF JUDGES ZIEMELE, BIANKU AND DE GAETANO

1. Regretfully, we do not share the view of the majority in this case. We consider that the case raises a question of great importance, notably the application of Article 6 guarantees by the domestic courts of an EU Member State in circumstances where they are called upon to execute a judgment rendered in another EU Member State and thus apply Council Regulation (EC) No 44/2001 (Brussels I).

2. It should be underlined that the applicant made important submissions in the domestic courts, arguing that he had not been properly informed of the court proceedings in Cyprus and therefore had been unable to exercise his right to defend himself in those proceedings (see paragraphs 18-19 of the judgment). Indeed the Regional Court accepted those arguments and rejected the request for execution of the Cypriot judgment. The Supreme Court quashed the Regional Court ’ s judgment and granted the request for execution. We find it highly problematic that the only reason given by the Supreme Court for refusing to uphold the applicant ’ s allegations of not having been duly notified of the Cypriot judgment was to say that those arguments “ [ were ] of no importance ” (see paragraph 22).

3. It is true that this Court is not a court of fourth instance. The Court has always reiterated that its power to review compliance with domestic law is limited, as it is in the first place for the national authorities to interpret and apply that law (see Mkrtchyan v. Armenia , no. 6562/03, § 43, 11 January 2007 ). However, the majority did not consider that this was a fourth ‑ instance case. The majority based their finding that there had been no violation of Article 6 on two grounds. First, they referred to the Bosphorus principle, saying that the standard of protection of fundamental rights in the EU was equivalent to that required under the Convention (see paragraph 47), and that compliance with the obligations flowing from the State ’ s membership of the EU was a matter of general interest (see paragraph 49). Second, they considered that the applicant should have known that he had to repay the debt and should not therefore have been surprised that he was pursued by the creditor in the courts in Cyprus (see paragraph 51).

4. Our difficulty with the reasons given by the majority is threefold. First, views may differ as concerns the applicant ’ s good faith. That is not an issue to be considered by this Court, however, and still less an issue that should be turned into one of the main reasons for its findings. It is a matter for the domestic courts. Second, EU Regulations are directly applicable in the EU Member States, which means that national authorities should apply the relevant legal provisions while also taking into consideration the case ‑ law of the EU Court of Justice. The Brussels Regulation provides for exceptions to automatic execution of judgments, notably in Article 34 ( 2 ) . We also note that the Court of Justice has spelt out that where the defendant claims, under Article 34 ( 2 ) , not to have been properly notified the judge of the receiving State is competent to examine the evidence (see paragraph 29, and also 26). In other words, the applicable EU law does not provide for blind automaticity as concerns the execution of judgments. Third, we note that in accordance with the Court ’ s well ‑ established case-law A rticle 6 § 1 of the Convention embodies the “ right to a court ” , of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect. T he principle of equality of arms is one element of the broader concept of a fair trial within the meaning of that provision. It requires a “ fair balance ” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent or opponents (see, for example , Gorraiz Lizarraga and Others v. Spain, no. 62543/00 , § 56 , ECHR 2004 ‑ III) . As these principles are aimed at all aspects of the procedural law of the Contracting States, they also apply to this particular area of service of judicial documents on the parties (see Miholapa v. Latvia , no. 61655/00, § 23, 31 May 2007 ) . Contrary to the majority, we consider the answer given by the Supreme Court of Latvia to the applicant ’ s submission that he was not properly notified of the judgment of the Cypriot courts totally insufficient to meet the requirements of Article 6 and especially bearing in mind the applicable EU law.

5. The answer that the applicant ’ s arguments, which go to the very essence of the issue before the Latvian courts, have no importance is clearly contrary to Article 6 guarantees. It should have been for the domestic courts to examine and give reasons why, for example, the exception relied on could not be maintained on the facts of the case. There probably were good reasons, but we do not know what they were. Still less is it for us to provide such reasons. The fact remains that the majority have departed from the Court ’ s case-law. Additionally, we are not sure that the implicit approval of the manner in which the Latvian Supreme Court applied the EU law is in fact consistent with EU law. While the Court is not competent to interpret EU law, we submit that it should not implicitly approve of domestic practices that may go against EU law. This is a new situation for the Court which merits very serious further reflection.