The Bosphorus presumption remains fully effective: its application to the principle of mutual recognition in the area of freedom, security and justice

Abstract

The judgment in Avotinš vs. Latvia is particularly important. It is the first time since the ECJ Opinion n. 2/13 that the ECtHR confirms that the presumption of equivalence remains fully effective. Also, and perhaps most importantly, it is the first time it addresses the conventionality of the principle of mutual trust, supporting that national courts must presume the compatibility with human rights of judgments handed down by the courts of another Member State. It is true, however, that the ECtHR warns of the risks of its mechanical application because it could lead to consider that the protection of ECHR rights was manifestly deficient. Therefore, this judgment should give pause to the institutions on the need to undertake a reform, homogenizing the degree of automaticity of mutual recognition, by inserting implied control clauses in cases of systemic flaws. From a broader perspective, the ECtHR develops a high degree of persuasion with this forced application of the doctrine of equivalent protection in order to try clearing the many doubts expressed by the ECJ in Opinion 2/13. So, either it is accepted by the other parties to the ECHR in the framework of a future accession negotiation the MEIJERS Committee proposal or the ECJ accepts that judgments as Avotinš/Latvia guarantee a enough coordination and takes into account the peculiarities of the AFSJ. After all, the ECtHR seems committed to give up the scrutiny of the instruments of AFSJ based on mutual trust as long as the judges perform an integrated protection of fundamental rights review whenever serious violations are alleged.