JOINT CONCURRING OPINION OF JUDGES LEMMENS AND BRIEDE

1. We concur with the majority that Article 6 § 1 of the Convention is applicable in the present case, but has not been violated.

To our regret, however, we are unable to follow the reasoning of the majority on all points. The majority basically find that there was a shortcoming in the proceedings before the Supreme Court of Latvia (see paragraphs 119-21 of the present judgment) but that in the specific circumstances of the case there was no manifest deficiency in the protection of fundamental rights; for that reason, they apply the presumption of equivalent protection known as the Bosphorus presumption (see paragraphs 122-25).

We respectfully disagree with the premise that there was a shortcoming in the proceedings before the Supreme Court.

2. Article 33 of the Brussels I Regulation lays down the principle that a judgment given in a member State of the European Union shall be recognised in the other member States. Article 34 allows for exceptions to the principle, enumerating two situations in which a judgment shall not be recognised. The applicant relied on the exception provided for in Article 34 § 2 (see paragraph 30 of the present judgment). He argued that the Limassol judgment was given in default of appearance, and that he had not been served with the document instituting the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence. There was one obstacle in the way of the applicant: he would not be able to rely on the exception under Article 34 § 2 if he had “failed to commence proceedings (in Cyprus) to challenge the judgment when it was possible for him to do so” (Article 34 § 2 in fine ). The question of exhaustion of remedies in Cyprus was thus decisive for the decision on this argument of the applicant. We note that nowhere is it stated in our judgment that the applicant argued that it had not been possible for him to challenge the Limassol judgment once he became aware of its existence (see in particular paragraphs 30 and 32).

It is important to note that the applicant also invoked another provision of the Brussels I Regulation, namely Article 38 § 1 (see paragraph 31 of the present judgment). According to that provision, 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. The applicant argued, among other things, that “the claimant company had not produced any documentary evidence demonstrating that the judgment of 24 May 2004 was enforceable in Cyprus” (ibid.). The question whether the Limassol judgment was enforceable in Cyprus was thus decisive for the decision on the second argument of the applicant.

The Supreme Court of Latvia quashed the judgment of the Regional Court and ordered the recognition and enforcement of the Limassol judgment. We attach particular importance to the way in which the Supreme Court dealt with the two arguments of the applicant. It held, on the basis of the evidence in the case file, that the Limassol judgment “became final”. It further held that this fact was confirmed by the explanations of both parties, according to which no appeal had been lodged against that judgment. In our opinion, these findings contained an answer to both arguments of the applicant: since the judgment was final, it was enforceable, and therefore the argument based on Article 38 § 1 of the Brussels I Regulation was rejected; moreover, the applicant had not challenged the judgment, and therefore the argument based on Article 34 § 2 of the Brussels I Regulation was rejected. The latter finding also explains why the Supreme Court considered that the question of the due notification of the examination of the case by the Limassol court “lack[ed] relevance”.

3. The majority find that the Supreme Court should have explicitly examined, in adversarial proceedings, the issue of the burden of proof with respect to the existence and availability of a remedy against the Limassol judgment (see paragraph 121 of the present judgment).

In our opinion, in the circumstances of the present case Article 6 § 1 of the Convention did not require the explicit examination of the burden of proof issue. The Supreme Court proceedings, including those relating to the burden of proof and the reasoning of its judgments, are regulated by Latvian law. It was for the Supreme Court to deal with the applicant’s argument according to the rules of domestic law. The applicant presented his arguments to the Supreme Court during an adversarial hearing, and the Supreme Court replied to these arguments in its judgment. Moreover, the applicant did not even dispute the fact that remedies were available in Cyprus; on the contrary, he based his argument relating to Article 38 § 1 of the Brussels I Regulation on the very fact that the Limassol judgment was not yet enforceable, which could be understood by the Supreme Court as an admission that it was still possible to challenge that judgment. In any event, the Supreme Court implicitly considered that a remedy was indeed available, and explicitly noted that the applicant had not made use of it.

If the applicant wanted to argue that no remedy had in fact been available to him in Cyprus, in our opinion it would have been for him to raise this issue explicitly before the Supreme Court. We question whether he could expect the Supreme Court to raise that issue of its own motion. And we definitely consider that he cannot complain under Article 6 § 1 of the Convention of the lack of an explicit response to an argument that was not explicitly made.

4. On the basis of the reasoning developed above, we conclude that the trial before the Supreme Court complied with the adversarial principle and the principle of equality of arms, and that Article 6 § 1 has therefore not been violated.

5. Having arrived at that conclusion, we obviously do not have to examine exactly which remedies were available under Cypriot law (see paragraph 122 of the present judgment).

We find it remarkable that the majority, in order to “save” the respondent State from a finding that the Convention has been violated, adopt a reasoning based on an interpretation of Cypriot law, thereby relying on the information provided by the Cypriot Government. It is in principle not for the Court to interpret domestic law. Here, the majority interpret provisions of the domestic law of a third State, which, moreover, do not seem to have been the subject of adversarial debate before the domestic courts of the respondent State.

6. Finally, since we find that there was no shortcoming in the proceedings before the Supreme Court of Latvia, we are of the opinion that it was not necessary to have recourse to the Bosphorus presumption.

When the Court applies the Bosphorus presumption, it in fact reduces the intensity of its supervisory role, in the interests of international cooperation (see Michaud v. France , no. 12323/11, § 104, ECHR 2012). It should not do so where the interests of international cooperation are not at stake.

The application of the presumption is therefore, in our opinion, relevant only if the case at hand involves the implementation of European Union law and if there has been a shortcoming in the relevant proceedings. The question then arises whether the deficiency in the protection of fundamental rights is so manifest that the presumption in favour of the respondent State is rebutted. In the present case, however, after what we consider to be an exercise of the scrutiny “normally” exercised by the Court, we find that there was no deficiency in the proceedings before the Supreme Court of Latvia.

The application can therefore be dismissed, in our opinion, without any need to base our reasoning on the Bosphorus presumption.