Je t’aime moi non plus. The Avotinš v. Latvia judgment: an answer from the ECrtHR to the CJEU

Abstract

In the Avotiņš v. Latvia judgment the European Court of Human Rights (ECrtHR) rules on the compatibility of mutual trust and mutual recognition of judicial decisions with the European Convention of Human Rights (ECHR). This decision was expected especially after the CJEU delivered its Opinion 2/13 on the Draft Agreement on the EU Accession to the ECHR. Mutual trust was indeed one of the arguments of the CJEU to justify the reject of the Draft Agreement. In Avotiņš v. Latvia, the ECrtHR revisits its case law on the Bosphorus presumption, which exonerates, under certain conditions, EU Member States from their responsibility under the ECHR when they apply EU law. Although mutual trust implies a reduced control over fundamental rights protection and a quasi-automatic recognition of judicial decisions, the ECrtHR remains confident that the EU protection of these rights is equivalent to the ECHR. The case note shows how the Strasbourg Court draws a line between the effectiveness of the AFSJ on the one hand and the respect for fundamental rights on the other. If the ECrtHR validates the principle of mutual trust it does so at the condition that the respect for the ECHR is not manifestly deficient.