DISSENTING OPINION OF JUDGE SAJÓ

1. Regretfully, I cannot share the views of the majority in this case.

2. The Limassol District Court ordered the applicant to pay a certain sum on 24 May 2004. That judgment was made in proceedings in which the summons had been served on the applicant (the defendant in the domestic proceedings) at the wrong address. He could not therefore have been aware of the proceedings. The claimant in the case requested execution of the Cypriot judgment in Latvia. It was in the course of those domestic proceedings that the applicant first learned of the existence of the Cypriot judgment. While the Regional Court quashed the impugned order of enforcement, the Supreme Court of Latvia ordered the recognition and enforcement of the Cypriot judgment. It is quite striking that the required certificate, dated 18 January 2007 (that is, two years after the execution request had been submitted to the court in Latvia), was submitted only in the appeal to the Supreme Court and that it was accepted at that stage of the proceedings. However, the case is about more fundamental issues of fairness. It also raises issues of the treatment of EU law in this Court. These are the issues where I beg to differ.

3. The Court does not deny “that a decision to enforce a foreign judgment cannot be regarded as compatible with the requirements of Article 6 § 1 of the Convention if it was taken without the unsuccessful party having been afforded any opportunity of effectively asserting a complaint as to the unfairness of the proceedings leading to that judgment, either in the State of origin or in the State addressed” (see paragraph 98 of the present judgment).

4. However, in the Court’s reasoning:

(a) There was no discretion granted to the domestic courts to review this issue because the matter had to be determined under the Brussels I Regulation, which, according to the interpretation given by the Court of Justice of the European Union (CJEU) (at least as understood by the Court), does not grant any discretionary power of assessment.

(b) However, such preclusion of a review of the fairness of the domestic proceedings in the context of the enforceability of the Cypriot judgment does not raise an issue because the very legal system that precludes it is to be considered as providing sufficient protection. Where the lack of proper protection originates from EU law there is, at least prima facie, no lack of proper protection as “the supervisory mechanisms put in place within the European Union afforded a level of protection equivalent to that for which the Convention mechanism provided” (see paragraph 109, with reference to Bosphorus Hava Yolları Turizm ve Ticaret Anonim Åžirketi v. Ireland [GC], no. 45036/98, ECHR 2005 ‑ VI).

(c) This case is about the (mutual) recognition of (foreign) judgments.

(d) In the context of the mechanism of mutual recognition of judgments within the European Union, the presumption of equivalent protection (“the Bosphorus presumption”) applies to the effect that only manifestly deficient regard for the Convention rights will raise an issue under the Convention.

(e) Such manifest deficiency did not occur, although the Senate of the Latvian Supreme Court did not examine the issue of the availability of a remedy in the State of origin.

(f) According to the Cypriot Government, “and not disputed by the parties”, there was a “perfectly realistic opportunity of appealing” in Cyprus.

5. If, however, the factual assumption under point (f) is correct, the case should have been declared inadmissible and it would not have been necessary to rely on Bosphorus and manifest deficiency. Moreover, as the Court itself has stated, the parties (and the Court) have to rely – in the proceedings before the European Court of Human Rights – on what the national courts took into consideration. According to the judgment of the Senate of the Latvian Supreme Court, “the Limassol District Court judgment became final” because, among other reasons, no appeal had been lodged against it. (This cannot be attributed to the applicant.) However, it is exactly the impossibility of making such an appeal that is at the origin of the lack of procedural fairness: without proper service in the proceedings there was no possibility to appeal. I do not see at which point the applicant could have raised the issue of the possibility of appeal in Cyprus in the domestic proceedings: this lack of opportunity was accepted by all parties and the domestic courts, and the only point of dispute was whether such a judgment rendered in violation of the requirements of fair proceedings could be enforced or not. However, the judgment of the Senate of the Latvian Supreme Court and the Court blame the applicant, although the execution proceedings were already under way and the issue was only whether a judgment rendered in disregard of the requirement of a hearing could be enforced.

6. The Court itself is aware of the inadequacy of the Latvian proceedings, and it has found that the Latvian domestic court did not discuss the availability of an appeal in Cyprus, at least as far as the burden of proof regarding the existence of such possibility was concerned, in adversarial proceedings leading to reasoned findings. However, according to the judgment, this shortcoming did not reach the level of a manifest deficiency. That is the applicable threshold in situations of presumed equivalent protection in matters of mutual recognition. It is because of this minimal scrutiny that the Court could be satisfied that there was no violation as, given that he allegedly did not appeal in Cyprus, the “regrettable Latvian shortcomings” do not amount to such a blatant violation.

7. At this point I have to voice my reservations regarding the Bosphorus presumption, 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 presumption, 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 (Article 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.

9. In my view, it does not serve the protection of human rights to extend the Bosphorus presumption to situations where the national courts allegedly have no discretion to consider Convention rights. [2] There is also some inconsistency here; at least I do not see comparable assumptions of equivalent protection in matters of application of the United Nations Charter, even where the Security Council has exclusive jurisdiction. Lastly, the extension of the Bosphorus presumption to matters of mutual recognition (a matter certainly not limited to the Brussels Regulation on enforcement of judgments) seems to generate a presumption unsustained by the realities of life even according to the CJEU, as became clear most recently in its judgments in C ‑ 404/15 and C ‑ 659/15 PPU. This Court shall remain faithful to its position adopted in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011; for the execution of foreign judgments in an Article 6 context, see Pellegrini v. Italy , no. 30882/96, ECHR 2001 ‑ VIII; see further X v. Latvia [GC], no. 27853/09 ECHR 2013).

[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.

[2] . In this regard I find the Commission’s position more convincing, but this Court is not called upon to determine the position under EU law any more than the position under national law, so I cannot rely on those considerations.