TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): As it was argued by the applicant's attorney in the court hearing before the Riga regional court in October 2006, there were no evidence in the case file on issues such as how the claim had been brought before Cyprus court, whether Cypriot judgment is enforced and enforceable, and whether it can be appealed.
AP1 (Applicant): And fifthly, important that there was no information available to the applicant on the possibility to appeal the Cypriot judgment.
AP1 (Applicant): Neither the judgment of District Court of Limassol nor even the certificate referred to in Article 55 and 58 of the Brussels regulation contain information on possibility or impossibility for the applicant to appeal the judgment of District Court of Limassol.
AP1 (Applicant): Moreover, incomplete certificate referred to in Articles 54 and 58 of the Brussels regulation was submitted to the court only on the day of hearing, that is 31st of January 2007.
AP1 (Applicant): And it was enclosed in the case file in court hearing of the Senate of the Supreme Court of Latvia without giving an opportunity for an applicant to express applicant's opinion in relation to this document.
AP1 (Applicant): And finally, applicant practically could not request the Supreme Court of Latvia to stay the proceedings in order to give a time for applicant to bring the appeal before the Cypriot court because the hearing of the 31st of January 2007 was conducted in such a manner which was in contrary to the Article 6 of the convention.
AP1 (Applicant): Applicant was not given a chance to effectively participate in the said hearing.
AP1 (Applicant): Proceedings must be adversarial to be fair.
AP1 (Applicant): Proceedings shall also be conducted in line with the principle of equality of arms.
AP1 (Applicant): The principle of equality of arms provides that each party shall have an adequate opportunity to adduce evidence, to challenge evidence provided by opposing party, and present arguments.
AP1 (Applicant): Equality of arms may also be violated if there are serious practical obstacles to one party presenting their case, as it has been established by the Honorable Court in McPhee versus France matter.
AP1 (Applicant): Court hearing of the Senate of Supreme Court of Latvia, which took place on 31st of January 2007, was not conducted in line with the said principles.
AP1 (Applicant): The hearing was not adversarial, and it definitely was not held taking into account principle of equality of arms.
AP1 (Applicant): We understand that at this moment it is very hard for the court to reconstruct factual circumstances of that hearing, but it should be emphasized that the only reason for that is the misconduct of the state.
AP1 (Applicant): State is the present case.
AP1 (Applicant): State in the present case has actively, in a way, has acted in a way which excluded any possibility to strengthen and verify the allegations of applicant.
AP1 (Applicant): Namely, the Senate of the Supreme Court of Latvia did not provide minutes of the court hearing of the 31st of January 2007, even though Article 61 and Article 447 of the Civil Procedure Law of Latvia required the minutes of the hearing to be provided.
AP1 (Applicant): Later on, all state institutions and officials rejected all the requests to initiate disciplinary procedure or grant rights to protest the said judgment.
AP1 (Applicant): Honorable court, applicant is not claiming that the state has violated convention only because it did not provide the minutes of the hearing.
AP1 (Applicant): We claim that if there were minutes of the hearing available, it would be easy to verify that a said hearing was not adversarial, and it definitely was not held taking into account principle of equality of arms.
AP1 (Applicant): And therefore, applicant practically could not submit any request, including a request to stay the proceedings or to apply to the European Court of Justice for a preliminary ruling or any procedural rights granted to applicant by the law of Latvia whatsoever.
AP1 (Applicant): Therefore, the applicant has proven that he argued before the Latvian courts that his rights to defense before the separate court were not respected.
AP1 (Applicant): And factual circumstances of the case show that it was practically impossible for him to challenge the separate judgment.
AP1 (Applicant): By not doing it, now in summary of my submissions, I could confirm to the court that by these relevant circumstance, the state had violated Article VI of the convention.
AP1 (Applicant): And therefore, applicant requests the court to declare that by granting enforcement of judgment of the district court of Limassol in Cyprus of 24th of May 2004, Latvian courts, in particular the Supreme Court of Latvia, has violated paragraph one of Article VI of the convention.
Dean Spielmann (JudgeP): Merci beaucoup, Maître Liepa.
Dean Spielmann (JudgeP): La parole est maintenant à Madame Līce.
GR1 (Government): ladies and gentlemen, the present case originates from the recognition and enforcement proceedings in application of the EU law secondary legislation.
GR1 (Government): That is to say, the Council Regulation number 44 slash 2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
GR1 (Government): From now on, I shall refer to this instrument as the Brussels 1 regulation.
GR1 (Government): In the following statements, I will provide the replies of the government of flat state to the questions posed by the court, insofar as these questions have not yet been answered in the government's written submissions.
GR1 (Government): In doing so, I might not necessarily follow the order in which the questions were posed.
GR1 (Government): I will also address the applicant's main arguments and will use this opportunity to provide other important information that has not been included in the government's previous written submissions.
GR1 (Government): Where relevant, I will refer to the submissions by third parties.
GR1 (Government): But before I proceed with answering the court's questions, in light of the chamber's judgments and considering the applicant's submissions to the grand chamber, some clarification as to the facts of the case is needed.
GR1 (Government): It should be made very clear from the very beginning that in the present case, there is no dispute that the applicant indeed had entered into a debt deed in May of 1999, borrowing a considerable amount of money from a company registered in Cyprus.
GR1 (Government): There is no dispute that in the debt deed signed by the applicant, he had indicated the following address, Riga, Latvia, Glasnoti Street, number 4, third floor, and that the writ of summons issued by the Limassol District Court was delivered to the aforementioned address and signed upon the receipts on 27th November of 2003.
GR1 (Government): There is no dispute that the applicant had failed to repay his debts by the date indicated in the debt deed, that is to say, by 30th of June 1999.
GR1 (Government): The applicant failed to communicate with the Limassol District Court, to whose jurisdiction he had explicitly consented.
GR1 (Government): Also, it is quite clear that at the time of the recognition and enforcement proceedings were pending for the Latvian courts in October of 2006, the applicant implicitly recognized the existence of the debt.
GR1 (Government): It should be once again emphasized that the subject matter of the present proceedings before this court is not the existence of the applicant's contractual obligations, but the question of whether the applicant's rights to fair trial have been respected.
GR1 (Government): I will now proceed with replying to the court's questions.
GR1 (Government): First of all, the court has asked the parties about the role of the EU law in the present case and whether the presumption of equivalent protection, which is also often referred to as the Bosphorus presumption with respect to the EU, is applicable in the present case.
GR1 (Government): As I stated just a moment ago in my introduction, the EU legislation relevant to the present case is the Brussels I Regulation.
GR1 (Government): Bearing in mind the government's written submissions to the chamber, at this stage I will confine myself to recalling that, according to the Court of Justice of the European Union, the Brussels I Regulation seeks to ensure free movement of judgments from member states in civil and commercial matters by simplifying formalities with a view to their rapid and simple recognition and enforcement.
GR1 (Government): In the words of the Court of Justice in the apostolate of the EU, the EU law is a system of fair and impartial judicial and judicial justice judgments.
GR1 (Government): And I quote, the system aims to establish a fair balance between, on the one hand, the mutual trust in administration of justice in the union, which justifies judgments given in a member state being as a rule recognized and declared enforceable automatically in another member state, and a real and adversarial procedure against declaration of enforceability if he considers one of the grounds for non-enforcement to be present.
GR1 (Government): In his submissions to the court, the applicant claims that the Latvian Supreme Court has misinterpreted and misapplied the EU law.
GR1 (Government): By claiming this, the applicant has manifestly overlooked the well-established case law of this court, including the chamber judgments in the present case, pursuant to Article 19 of the convention, the Strasbourg court has no competence to assess a state's compliance with the EU law or to rule on interpretation and application of the EU law.
GR1 (Government): At the same time, there is no doubt that this does not rule out the court's competence to verify in the light of requirements of Article 6 of the convention the state's actions taken in order to comply with its legal obligations stemming from the EU membership and thus the EU law.
GR1 (Government): With respect to this interplay between the EU law and the convention, I will quote my good colleague Jorg Polakevic, beginning of quotes, the large degree of overlap between the various legal instruments may occasionally generate competition, sometimes even tensions, between their respective ultimate interpreters.
GR1 (Government): Different approaches can be mutually enriching as long as the various actors base their interaction on a set of shared principles, end of quote.
GR1 (Government): These shared principles lie in equal understanding about the protection of fundamental rights by both the Strasbourg court and the Luxembourg court.
GR1 (Government): Therefore, it is the government's firm belief that the presumption of equivalent protection or the post-first presumption is based exactly on the shared principles.
GR1 (Government): And there is no reason in the present case to question this conclusion.
GR1 (Government): I will now turn to the notion of Bosphorus presumption itself.
GR1 (Government): The Bosphorus case decided in 2006 allowed the Strasbourg court to clarify the relationship between the EU and Council of Europe's human rights regimes by elaborating on the equivalent protection presumption from the EU law perspective.
GR1 (Government): This court has ruled that the EU guarantees a level of fundamental rights protection equivalent to that of the convention.
GR1 (Government): Thus, the compliance with the convention can be presumed where a state effectively follows the applicable EU law.
GR1 (Government): I wish to emphasize at this stage that in the course of recognition and enforcement proceedings under Brussels I regulation, the Latvian courts were indeed fulfilling Latvia's legal obligations that stem from its EU membership.
GR1 (Government): The Court of Justice in its turn, in its case law has expressly recognized that the objectives of the EU law cannot be attained by undermining in any way the fundamental rights, including the right to fair trial.
GR1 (Government): In interpreting the scope of the right to fair trial, the Court of Justice takes into consideration the case law of the Strasbourg court relating to Article 6 of the convention.
GR1 (Government): Moreover, the Court of Justice has confirmed that the observance of the right to fair trial is a fundamental principle of community law.
GR1 (Government): The applicant contends that the Bosphorus presumption is not applicable in the present case because firstly, the Latvian courts allegedly had a discretion in deciding whether to grant recognition and enforcement of the Limassol district court judgments.
GR1 (Government): And secondly, because the Latvian courts did not make use of the control mechanism provided for in the EU law.
GR1 (Government): That is to say, the Latvian courts did not file a request for a preliminary ruling with the Court of Justice.
GR1 (Government): In response to the applicant's arguments, I recall and I wish to emphasize that this court has made sufficiently clear the circumstances under which the application of the Bosphorus presumption would be ruled out.
GR1 (Government): In particular, this court has been very mindful of the fact whether the national courts had duly made use of the control mechanism provided for the EU law.
GR1 (Government): That is to say, whether the national courts have asked the Court of Justice for a preliminary ruling and what were the reasons given by national courts in refusing to submit such requests.
GR1 (Government): For instance, as the representative of the applicants referred to the case of Mishadu, this court has ruled out the application of the presumption of equivalent protection where the national court refused to request the preliminary ruling or had failed to give reasons for refusing to submit the preliminary request.
GR1 (Government): But what I want to emphasize particularly is that the facts of the present case are very different in that the applicant has never asked the domestic courts to submit a request for a preliminary ruling with the Court of Justice.
GR1 (Government): And this simple fact makes a clear distinction between the present case and the case of, for example, Mishadu versus France.
GR1 (Government): I now wish to refer to the government's written submissions to the Grand Chamber.
GR1 (Government): In these submissions, the government elaborated in detail regarding the occasions when, according to the Court of Justice, the national court does not need to make a request for a preliminary ruling.
GR1 (Government): The government also has argued that the case law of this court clearly demonstrates that the absence of a request for a preliminary ruling does not per se rule out the application of the Bosphorus presumption.
GR1 (Government): The Latvian courts would address the necessity to submit a preliminary ruling request where the judges discussing the case had questions as to the correct application of the EU law in a particular case or in cases where there has been a request to this effect by a party.
GR1 (Government): It is true that, contrary to the Bosphorus case, in the present case, the Latvian Supreme Court did not seek a preliminary ruling from the Court of Justice.
GR1 (Government): But one must take into account the clarity of the wording of Article 34, Paragraph 2 of the Brussels Fund Regulation, and the fact that the fundamental condition for non-recognition was manifestly not met.
GR1 (Government): And thus, a preliminary ruling was not a requirement indispensable for correct application of the relevant EU law provision and for ensuring the protection of fundamental rights.
GR1 (Government): To repeat, the absence of a request for preliminary ruling does not rule out and does not affect the application of the Bosphorus presumption in the present case.
GR1 (Government): This court has also made very clear in its case law that the Bosphorus presumption would not be applicable where the state's acts amounted to exercise of discretion instead of an obligation.
GR1 (Government): In this regard, I once again would like to refer to the government's written submissions.
GR1 (Government): In these submissions, the government has elaborated in detail as to why the applicants' allegations that the national courts enjoyed discretion in application of the Brussels Fund Regulation, Article 34, Paragraph 2, is wrong.
GR1 (Government): It should be emphasized that the government's position has been supported by the third parties in their observations, namely by the European Commission and the Estonian government.
GR1 (Government): Therefore, there is a common understanding that the limits of the competence of the national courts to decide on non-recognition of a judgment from another member state under Article 34, Paragraph 2 of the Brussels Fund Regulation, are clearly defined, leaving no discretion.
GR1 (Government): The only room of maneuver available to the national courts is limited to the verification of whether the default judgment could have been appealed against.
GR1 (Government): To sum up, the government can only join the chamber in its conclusions and therefore maintains its position expressed in the written submissions.
GR1 (Government): That is to say that the presumption of equivalent protection does apply in the present case, and therefore it should be presumed that Latvia has complied with the requirements of the convention.
GR1 (Government): I will now address the court's question of whether the domestic law of Cyprus provided for an appeal against the Limassol District Court's judgments, and in particular, whether the appeal was possible after the applicant was acquainted with the contents of that judgment on 16 June 2006.
GR1 (Government): The answer to this court's question is a short and very simple one.
GR1 (Government): Yes, the Cypriot law did provide for an appeal against the Limassol District Court judgments.
GR1 (Government): It is sufficient to refer to the written observations submitted to the grand chamber by the government of Cyprus, which demonstrate that under the Cypriot civil procedure rules, the applicant had both theoretical and practical possibility to challenge the default judgments.
GR1 (Government): I also wish to note that therefore said right was not time barred.
GR1 (Government): Finally, the government of Cyprus has demonstrated very well by submitting examples from the case law that the appeal procedure provided in the Cypriot law existed not only in theory, but also in practice, despite the lapse of time between the adoption of the default judgment and the date on which the applicant was acquainted with its contents.
GR1 (Government): It follows from the above considerations that it was open for the applicant to challenge the default judgment after the date on which he became aware of that judgment, namely after 16th of June, 2006.
GR1 (Government): And he had at least six months at his disposal until the Latvian Supreme Court examined the case.
GR1 (Government): Had the applicants exercised his procedural rights under the domestic law of Cyprus in the present case, he could have sought the protection of his rights and legitimate interests in Cyprus.
GR1 (Government): And in doing so, he could have relied on the convention rights before the Cypriot courts as well.
GR1 (Government): It should be recalled that Article 34, paragraph 2 of the Brussels I regulation is likewise based on the assumption that any deficiencies in the default judgment primarily have to be remedied in the state of this judgment's origin.
GR1 (Government): At this stage, I must refer to this court's well-established case law that once the government has proved that the remedy was available both in theory and practice, it is for the applicant to show that the remedy advanced by the government was in fact exhausted, or for some reasons was inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving the applicant from this requirement.
GR1 (Government): Moreover, the applicants must comply with applicable rules and procedures of domestic law.
GR1 (Government): And any borders, factual or legal, are not an obstacle per se to the execution of domestic remedies within that state.
GR1 (Government): The government believes that in the case like the present one, the court should address the remedies available to the applicants in the light of the case as a whole.
GR1 (Government): Since the applicant's failure, and I wish to emphasize this, the applicant's failure to exhaust the remedies in Cyprus had in fact tied the hands of the Latvian courts.
GR1 (Government): The government wishes to point out that the applicants who had explicitly consented to the jurisdiction of the Cypriot courts was legally represented throughout the whole of the domestic proceedings, as well as in the proceedings before this court.
GR1 (Government): Despite this, the applicant has not provided a single reason to justify his failure to appeal against the Limassol district court judgments.
GR1 (Government): Thus, the person should not misuse the convention rights and seek this court's protection in the situation he had helped to bring about by his own inaction, which was a conclusion arrived by this court in a case of Macdonald versus France.
GR1 (Government): In the case of the Latvian courts, in particular the Supreme Court's decision of 28th of June, 2006, demonstrates that the domestic courts had indeed refused recognition and enforcement of a foreign judgment in case the respondent had lodged an appeal in the country of origin.
GR1 (Government): The applicant could not have been unaware of this practice since the aforementioned Supreme Court's case, which resulted in the refusal to recognize and enforce the foreign judgment.
GR1 (Government): In that case, the defendant was represented by the same lawyer as the applicants in the domestic proceedings of the present case.
GR1 (Government): Last but not least, had the applicants commenced the appeal proceedings against the default judgments once he became aware of it in June, 2006, he could have requested the court faced with the recognition and enforcement to stay those proceedings pursuant to Article 37 and Article 46, paragraph 1 of the Brussels I regulation, as these provisions allow the courts in which recognition and enforcement is sought to stay proceedings if an ordinary appeal against the judgment has been lodged or if the time for such an appeal has not yet expired.
GR1 (Government): I will now turn to the court's question of whether the fact that there was no appeal procedure indicated in the Limassol District Court's judgments was of any importance in the present case.
GR1 (Government): First of all, I wish to refer to the information provided by the government of Cyprus that under the Cypriot law, there is no requirement that court judgments contain any reference to the appeal procedures available.
GR1 (Government): Such requirements can also be not implied from the convention nor from the Brussels I regulation.
GR1 (Government): Otherwise, and this is also something I would like to emphasize, any judgments delivered in Cyprus would automatically lead to the convention's violation because of the simple fact that it does not contain reference to the appeal procedure.
GR1 (Government): The very fact that under various legal systems among the member states of the Council of Europe, different procedural rules are in place does not release the applicant from the obligation to have recourse to the remedies existing under a legal system, particularly where he has consented to the dispute resolution under that legal system and was insured with proper legal representation.
GR1 (Government): In this regard, I must highlight Chambers' conclusions in the present case that the absence of any indication to the possible appeal procedure is immaterial, where the applicant could find it out by himself or by the assistance of his lawyer as soon as he learns about the default judgments.