CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 23 mai 2016

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LATVIA   (Application no. 17502/07)                 JUDGMENT     STRASBOURG   23 May 2016           This judgment is final. In the case of Avotiņš v. Latvia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   András Sajó, President ,   Işıl Karakaş,   Josep Casadevall,   Elisabeth Steiner,   Ján Šikuta,   Nona Tsotsoria,   Ganna Yudkivska,   André Potocki,   Paul Lemmens,   Aleš Pejchal,   Faris Vehabović,   Ksenija Turković,   Egidijus Kūris,   Robert Spano,   Iulia Antoanella Motoc,   Jon Fridrik Kjølbro, judges ,   Jautrīte Briede, ad hoc judge , and Johan Callewaert, Deputy Grand Chamber Registrar , Having deliberated in private on 8 April 2015 and 23 March 2016, 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”) 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 initially represented by Mr J. Eglītis, a lawyer practising in Riga. In the Grand Chamber proceedings he was represented by Mr L. Liepa, a lawyer also practising in Riga. The Latvian Government (“the Government”) were represented by their former Agent, Ms   I. Reine, and subsequently by their current Agent, Ms K. Līce. 3.     The application was originally lodged against Cyprus and Latvia. The applicant alleged, in particular, that a Cypriot court had ordered him to pay a contractual debt without duly summoning him to appear or securing the exercise of his defence rights. He further complained of the fact that the Latvian courts had ordered the enforcement of the Cypriot court judgment in Latvia. He alleged a violation of his right to a fair hearing guaranteed by Article 6 § 1 of the Convention. 4.     The application was initially assigned to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). In a partial decision of 30   March 2010, a Chamber of that Section declared the application inadmissible as being out of time in so far as it concerned Cyprus (for failure to comply with the six-month time ‑ limit laid down in Article 35 § 1 of the Convention). With regard to the complaints against Latvia, the Chamber further decided to give notice to the Government of the complaint under Article 6 § 1 of the Convention and to declare the remainder of the application inadmissible. 5.     On 1 February 2011 the composition of the Court’s Sections was changed and the application was assigned to the Fourth Section (Rules 25 §   1 and 52 § 1). 6.     On 25 February 2014 a Chamber of that Section composed of Päivi   Hirvelä, President, Ineta Ziemele, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano and Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, delivered a judgment in which it found by a majority that there had been no violation of Article 6 §   1 of the Convention. The joint dissenting opinion of Judges Ziemele, Bianku and De Gaetano was annexed to the judgment. 7.     On 23 May 2014 the applicant requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. On 8   September 2014 a panel of the Grand Chamber granted the request. 8. The composition of the Grand Chamber was subsequently determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. As the seat of the judge elected in respect of Latvia had become vacant in the meantime owing to the departure of Judge Ineta Ziemele, the President of the Court appointed Ms Jautrīte Briede to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 9.     The Government filed observations on the merits, while the applicant referred to the arguments submitted in his request for referral to the Grand Chamber. Observations were also received from the Estonian Government, the European Commission and the Centre for Advice on Individual Rights in Europe, all of which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The European Commission was also given leave to participate in the hearing. 10.     Furthermore, in the interests of the proper administration of justice, the President of the Court decided to invite the Cypriot Government to intervene in the case and to submit explanations and observations on Cypriot law as relevant to the case (Article 36 § 2 of the Convention and Rule 44 § 3). The Cypriot Government accepted the invitation and submitted their observations on 4 February 2015. 11.     A hearing was held in public in the Human Rights Building, Strasbourg, on 8 April 2015 (Rule 59 § 3).   There appeared before the Court: (a)     for the applicant Mr   L.   Liepa ,   Counsel , Mr   M.   Šķiņķis , Mr   M.   Pētersons ,   Advisers , Mr   P. Avotiņš ,   Applicant ; (b)     for the Government Ms   K.   Līce ,   Agent , Ms   S.   Kauliņa ,   Counsel , Ms   A.   Zikmane, Ms   D.   Palčevska ,   Advisers ; (c)     for the European Commission Mr   H.   Krämer,   Counsel .   The Court heard addresses by Mr Liepa, Ms Līce and Mr Krämer and their replies to questions put by judges. 12.     Judges Steiner, Tsotsoria and Lemmens, substitute judges, subsequently replaced President Dean Spielmann and Judges Mark Villiger and Isabelle Berro, who had left the Court owing to the expiry of their terms of office and were unable to take part in the further consideration of the case (Rule 24 §§ 3 and 4). Judge Sajó, Vice-President of the Court, then took over the presidency of the Grand Chamber in the present case (Rule 10). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 13.     The applicant was born in 1954 and lives in Garkalne (Riga district). At the time of the events which are the subject of the present application he was an investment consultant. A.     The proceedings in the Limassol District Court 14.     On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed an acknowledgment of debt deed 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 deed also contained choice of law and jurisdiction clauses according to which it was governed “in all respects” by Cypriot law and the Cypriot courts had non ‑ exclusive jurisdiction to hear any disputes arising out of it. The applicant’s address was given as G. Street in Riga and was set out as follows: “[FOR] GOOD AND VALUABLE CONSIDERATION, I, PĒTERIS AVOTIŅŠ, of [no.], G. [street], 3rd floor, Riga, Latvia, [postcode] LV-..., (‘the Borrower’) ...” 15.     In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court ( Επαρχιακό Δικαστήριο Λεμεσού , Cyprus), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the principal debt together with interest. In the Strasbourg proceedings the applicant submitted that he had in fact already repaid the debt before the proceedings were instituted in the Cypriot court, not by paying the sum of money in question to F.H. Ltd., but by other means linked to the capital of F.H. Ltd.’s parent company. However, he acknowledged that there was no documentary evidence of this. The Government contested the applicant’s submission. 16.     In an order dated 27 June 2003, the District Court authorised the “sealing and filing of the writ of summons”. On 24 July 2003 a “specially endorsed writ” was drawn up, describing the facts of the case in detail. It gave the applicant’s address as G. Street in Riga, the address indicated on the acknowledgment of debt deed. 17.     Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same District Court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country and requiring him to appear within thirty days from the date of issuing of the summons. The claimant company’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and could actually receive judicial documents at that address. The applicant, for his part, contended that it would have been physically impossible for him to receive the summons at the address in question, which was simply the address at which he had signed the loan contract and the acknowledgment of debt deed in 1999 and was not his home or business premises. 18.     On 7 October 2003 the Limassol District Court ordered that notice of the proceedings be served on the applicant at the address provided by the claimant company. The applicant was summoned to appear or to come forward within thirty days of receiving the summons. If he did not do so, the court would make no further attempt to contact him and would instead post all future announcements concerning the case on the court noticeboard. 19.     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 had been sent by recorded delivery to the address in G. Street in Riga on 16 November 2003. However, the copy of the summons furnished by the Government indicated that it had been drawn up on 17 November 2003. The slip produced by the Cypriot postal service stated that the summons had been sent on 18 November 2003 to the address in G. Street, and had been delivered and signed for on 27 November 2003. However, the signature on the slip does not appear to correspond to the applicant’s name. The applicant claimed never to have received the summons. 20.     As the applicant did not appear, the Limassol District Court ruled in his absence on 24 May 2004. It 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, the final version of which was drawn up on 3   June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment did not state whether the decision was final or indicate possible judicial remedies. B.     The recognition and enforcement proceedings in the Latvian courts 21.     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 temporary precautionary measure applied. It stated that the applicant was the owner of real property in Garkalne (Riga district) 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 in question and record the charge 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 an address in Č. Street in Riga which differed from the address previously notified to the Cypriot court. 22.     On 28 April 2005 the Latgale District Court adjourned examination of F.H. Ltd.’s request, informing the company that the request contained a number of defects which it had one month to correct. In particular, F.H. Ltd. had not explained why it had given an address in Č. Street when the applicant was supposedly resident in G. Street. 23.     On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that, according to the information contained in the register of residents ( Iedzīvotāju reģistrs ), the address in Č. Street was the applicant’s officially declared home address. As to the address in G.   Street, the company’s representatives had assumed it to be the applicant’s actual residence. In that connection the Government provided the Court with a copy of a letter from the authority responsible for the register of residents according to which, prior to 19 June 2006, the applicant’s officially declared address had been in Č. Street. 24.     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 therefore declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court ( Rīgas apgabaltiesa ), which on 23   January 2006 set aside the order of 31 May 2005 and remitted the case to the District Court in order for the latter to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005. 25.     In an order of 27 February 2006 issued without the parties being present, the Latgale District Court granted 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. 26.     According to the applicant, it was not until 15 June 2006 that he learned, from the bailiff responsible for enforcement of the Cypriot judgment, of the existence of that judgment and of the Latgale District Court order for its enforcement. On the following day (16 June 2006) he went to the District Court, where he acquainted himself with the judgment and the order. The Government did not dispute these facts. 27.     The applicant did not attempt to appeal against the Cypriot judgment in the Cypriot courts. However, he lodged an interlocutory appeal ( blakus sūdzība ) against the order of 27 February 2006 with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. Arguing that there was nothing in the case file to confirm that he had been given notice of the hearing of 27 February 2006 or of the order issued following the hearing, he submitted that the thirty-day period laid down by the Civil Procedure Law should start running on 16   June 2006, the date on which he had taken cognisance of the order in question. 28.     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. “... It is clear from the order of 27 February 2006 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.]. The order further states that the defendant may 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 arguments advanced by the applicant, P. Avotiņš, to be well founded, to the effect 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 ... It is apparent from the documents appended to the appeal that the applicant has not lived at the 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 ... Further, the court does not share 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 change of address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact that the applicant did not take the necessary legal steps concerning registration of residence is not sufficient to justify a refusal by the court to allow him 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, with the consequences this is likely to entail. ...” 29.     In his grounds of appeal before the Riga Regional Court the applicant contended that the recognition and enforcement of the Cypriot judgment in Latvia breached 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) and several provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard. 30.     Firstly, the applicant argued that in accordance with Article 34 § 2 of the Brussels I Regulation (corresponding in substance to the third sub-paragraph of section 637(2) of the Latvian Civil Procedure Law), a judgment given in default in another member State could not be recognised if the defendant had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. He maintained that he had not been duly informed of the proceedings in Cyprus, although 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. In support of that allegation he submitted that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office, and had met the Latvian lawyers in person. Hence, they must all have been aware of his business address. He added that he could also have been reached at his home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and the lawyers could have consulted the municipal land register, where the property he owned was registered under his name. However, instead of serving notice of the proceedings on him at one of those addresses, which had been known and accessible, the lawyers had given the courts an address which they should have realised could not be used. 31.     Secondly, the applicant argued that, under the terms of Article 38 § 1 of the Brussels I Regulation and the second sub ‑ paragraph of section 637(2) of the Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the member State addressed. In the instant case, there had been a threefold breach of those requirements. Firstly, the claimant had only submitted the text of the Cypriot court judgment to the Latvian court and not the certificate required by Annex V to the Brussels I Regulation. In that connection the applicant acknowledged that under Article 55 § 1 of the Brussels I Regulation the court in which enforcement was sought could, in some circumstances, exempt the claimant from the obligation to produce a certificate. However, in the present case the Latgale District Court had not made clear whether it considered that the claimant could be exempted from that obligation and, if so, for what reason. Secondly, the Cypriot judgment had contained no reference to the fact that it was enforceable or to possible judicial remedies. Thirdly, although a judgment had to be enforceable in the country of origin in order to be enforced in accordance with the Brussels I Regulation, the claimant company had not produced any documentary evidence demonstrating that the judgment of 24 May 2004 was enforceable in Cyprus. In view of all these circumstances, the applicant contended that the judgment could on no account be recognised and enforced in Latvia. 32.     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. 33.     F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it on 31 January 2007. At the start of the hearing, F.H. Ltd. submitted copies of several documents to the Senate, including the certificate referred to in Article 54 of the Brussels I Regulation and Annex V thereto. The certificate was dated 18 January 2007 and had been signed by an acting judge of the Limassol District Court. It stated that 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 contended that they were clearly insufficient to render the judgment enforceable. 34.     In a final judgment of 31 January 2007, the Supreme Court quashed and annulled the Regional Court judgment of 2 October 2006. It granted F.H.   Ltd.’s request and 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. “ ... It is clear from the evidence in the case file that the Limassol District Court judgment became final. This is confirmed by the explanations provided by both parties at the Regional 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 ... As [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 lack relevance [ nav būtiskas nozīmes ]. Having regard to the foregoing, the Senate finds that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 must be recognised and enforced in Latvia. Article 36 of the [Brussels I] 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 that Law. ...” 35.     On 14 February 2007 the Latgale District Court, basing its decision on the Supreme Court’s judgment, issued a payment order ( izpildu raksts ). The applicant complied immediately with the terms of the order and paid the bailiff employed by the claimant company a total of 90,244.62 Latvian lati ((LVL), approximately 129,000 euros), 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 his property. II.     RELEVANT EUROPEAN UNION AND INTERNATIONAL LAW MATERIALS A.     General European Union law 1.     Fundamental rights in European Union law 36.     At the material time the relevant parts of Article 6 of the Treaty on European Union (TEU) read as follows. “1.     The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2.     The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. ...” 37.     Following the entry into force of the Treaty of Lisbon on 1   December 2009, Article 6 of the TEU reads as follows. “1.     The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. 2.     The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. 3.     Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” 38.     Furthermore, since 1 December 2009 the relevant provisions of the Treaty on the Functioning of the European Union (TFEU) provide as follows. Article 67 “1.     The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. ... 4.     The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.” Article 81 § 1 “The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.” Article 82 § 1 “Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. ...” 39.     Lastly, the second paragraph of Article 249 of the Treaty establishing the European Community (applicable at the material time and identical to Article 288, second paragraph, of the TFEU) provided: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” 40.     The relevant provisions of the Charter of Fundamental Rights of the European Union (which had not yet acquired binding force at the material time) provide as follows. Article 47 Right to an effective remedy and to a fair trial “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. ...” Article 51 Field of application “1.     The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. ... ...” Article 52 Scope and interpretation of rights and principles “1.     Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. ... 3.     In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4.     In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. ...” Article 53 Level of protection “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.” 41.     In Krombach v. Bamberski (28 March 2000, C-7/98, ECR I-1935, EU:C:2000:164), the Court of Justice of the European Union (known as the Court of Justice of the European Communities prior to the entry into force of the Treaty of Lisbon on 1 December 2009 – CJEU), held as follows. “25.     The Court has consistently held that fundamental rights form an integral part of the general principles of law whose observance the Court ensures (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the ECHR’) has particular significance (see, inter alia , Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18). 26.     The Court has thus expressly recognised the general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I ‑ 8417, paragraphs 20 and 21, and judgment of 11 January 2000 in Joined Cases C ‑ 174/98 P and C-189/98 P Netherlands and Van der Wal v   Commission [2000] ECR I-1, paragraph 17). 27.     Article F(2) of the Treaty on European Union (now, after amendment, Article   6(2) EU) embodies that case-law. It provides: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.” 42.     In its judgment in ASML Netherlands BV v. Semiconductor Industry Services GmbH (SEMIS) (14 December 2006, C-283/05, ECR I-12041, EU:C:2006:787), the CJEU reiterated the following. “26.     According to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures ... For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) has special significance ... 27 .     It follows from the ECHR, as interpreted by the European Court of Human Rights, that the rights of the defence, which derive from the right to a fair legal process enshrined in Article 6 of that convention, require specific protection intended to guarantee effective exercise of the defendant’s rights (see Eur. Court H.R., Artico v   Italy judgment of 13 May 1980, Series A No 37, § 33, and Eur. Court H.R., T v Italy judgment of 12 October 1992, Series A No 245 C, § 28).” 43.     In its judgment in DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepublik Deutschland (22 December 2010, C-279/09, ECR I-13849, EU:C:2010:811), delivered after the entry into force of the Treaty of Lisbon and hence after the Charter of Fundamental Rights had acquired the same legal value as the Treaties, the CJEU held as follows. “29.     The question referred thus concerns the right of a legal person to effective access to justice and, accordingly, in the context of EU law, it concerns the principle of effective judicial protection. That principle is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) ... 30 .     As regards fundamental rights, it is important, since the entry into force of the Lisbon Treaty, to take account of the Charter, which has ‘the same legal value as the Treaties’ pursuant to the first subparagraph of Article 6(1) TEU. Article 51(1) of the Charter states that the provisions thereof are addressed to the Member States when they are implementing EU law. 31 .     In that connection, the first paragraph of Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Under the second paragraph of Article 47, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone is to have the possibility of being advised, defended and represented. The third paragraph of Article 47 of the Charter provides specifically that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. 32 .     According to the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR.” 44.     In Gascogne Sack Deutschland GmbH v. Commission (26 November 2013, C ‑ 40/12 P, EU:C:2013:768), the CJEU stressed the continuity of the legal system before and after the entry into force of the Treaty of Lisbon, finding as follows. “28.     As to the question of whether the entry into force of the Lisbon Treaty ought to have been regarded, as the appellant submits, as a matter which came to light in the course of the proceedings and, on that basis, gave good grounds, in accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, for introducing new pleas in law, the Court of Justice has held that the entry into force of that treaty, incorporating the Charter into European Union primary law, cannot be considered a new matter of law within the meaning of the first subparagraph of Article   42(2) of its Rules of Procedure. In that context, the Court has noted that, even before that treaty entered into force, it had found on several occasions that the right to a fair trial, which derives inter alia from Article 6 ECHR, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU (see, in particular, Case C-289/11 P Legris Industries v   Commission , paragraph 36).” 45.     Lastly, with regard to the scope of the rights guaranteed by the Charter of Fundamental Rights, the CJEU held the following in J. McB. v. L.E. (5 October 2010, C ‑ 400/10   PPU-MCB, p. I-08965). “53.     Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘[e]veryone has the right to respect for his or her private and family life, home and communications’. The wording of Article 8(1) of the ECHR is identical to that of the said Article   7, except that it uses the expression ‘correspondence’ instead of ‘communications’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C ‑ 450/06 Varec [2008] ECR I ‑ 581, paragraph 48).” 2.     Fundamental rights and the principle of mutual trust 46.     In its judgment in N.S. v. Secretary of State for the Home Department and M.E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (21 December 2011, C ‑ 411/10 and C-493/10, ECR I-13905, EU:C:2011:865), given in the context of the application of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (the Dublin II Regulation), the CJEU held as follows. “77.     According to settled case-law, the Member States must not only interpret their national law in a manner consistent with European Union law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the European Union legal order or with the other general principles of European Union law (see, to that effect, Case C ‑ 101/01 Lindqvist [2003] ECR I ‑ 12971, paragraph 87, and Case C ‑ 305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I ‑ 5305, paragraph   28). 78 .     Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard. ... 80 .     In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR. 81 .     It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights. ... 83 .     At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. ... 94.     It follows from the foregoing that in situations such as that at issue in the cases in the main proceedings, to ensure compliance by the European Union and its Member States with their obligations concerning the protection of the fundamental rights of asylum seekers, the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. ... 98 .     The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, that Member State must itself examine the application in accordance with the procedure laid down in Article   3(2) of Regulation No 343/2003. 99 .     It follows from all of the foregoing considerations that, as stated by the Advocate General in paragraph 131 of her Opinion, an application of Regulation No   343/2003 on the basis of the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights. 100 .     In addition, as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. 101 .     That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary. ... 104 .     In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. 105 .     In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.” 47.     In the case of Stefano Melloni v. Ministerio Fiscal (26 February 2013, C-399/11, EU:C:2013:107), concerning in particular the issue whether a European Union member State could refuse to execute a European arrest warrant on the basis of Article 53 of the Charter of Fundamental Rights on grounds of infringement of the fundamental rights of the person concerned guaranteed by the national Constitution, the CJEU found as follows. “60.     It is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised. 61 .     However, [the] Framework Decision [governing the European arrest warrant] does not allow Member States to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for therein. 62 .     It should also be borne in mind that the adoption of Framework Decision 2009/299, which inserted that provision into Framework Decision 2002/584, is intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absenc