BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND SECTION
CASE OF JUCIUS AND JUCIUVIENĖ v. LITHUANIA
(Application no. 14414/03)
JUDGMENT
STRASBOURG
25 November 2008
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Jucius and Juciuvienė v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Françoise
Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having deliberated in private on 4 November 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 14414/03)
against the Republic of Lithuania lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Lithuanian
nationals Mr Marijus Jucius and Mrs Gertrūda
Juciuvienė (“the applicants”), on 7 April 2003.
- The applicants were represented by Mr A. Jokšas,
a lawyer practising in Tryškiai. The Lithuanian Government
(“the Government”) were represented by their
Agent, Ms E. Baltutytė.
- The applicants alleged, inter alia, a violation
of their right to family life as the domestic courts originally
granted permanent custody of their two orphaned nieces to
grandparents. They also complained about certain aspects of the
appeal procedures in the case.
- On 1 July 2005 the Court decided to give notice to
the Government of the applicants' complaints under Articles 6 and 8
of the Convention. On the same date, it decided to apply Article 29 §
3 of the Convention and to examine the merits of the complaints at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant is a Lithuanian national who was
born in 1966. The second applicant, his wife, is a Lithuanian
national who was born in 1967. They live together in MaZeikiai and
have two children.
- In April 1999 the first applicant's sister, SJ, and her
partner, DŠ (senior), died, and the applicants were appointed
as temporary custodians of the deceased couple's daughters - RŠ,
aged four, and DŠ, aged six months.
- On an unspecified date in 1999 the paternal
grandparents, SŠ and VŠ, applied to a court to adopt RŠ
and DŠ. The applicants submitted a counter-claim for the
adoption. On 22 December 1999 the MaZeikiai District Court
accepted the grandparents' claim, recognising RŠ and DŠ
as their adopted children. On 27 March 2000 the Šiauliai
Regional Court upheld that decision. On 14 June 2000 the
Supreme Court quashed the lower decisions, remitting the case for a
fresh examination at first instance.
- On 17 July 2001 the MaZeikiai District Court partly
granted the claim of SŠ and VŠ, by recognising DŠ
(then two years) as their adopted daughter. However, it recognised RŠ
(then six years old) as the adopted daughter of the applicants. The
applicants and the grandparents were ordered by the court to ensure
that there were no obstacles that would prevent RŠ and DŠ
from communicating with the applicants as well as with their
grandparents.
- On 8 March 2002 the Šiauliai Regional Court
quashed the decision, dismissing both adoption applications. The
court considered that the dispute between the two couples could be
resolved without an adoption, but by a grant of permanent custody.
- On 28 August 2002 the MaZeikiai District Court
appointed SŠ and VŠ as the permanent custodians of the
two girls. The court reached this decision on account of the better
financial and living conditions of the grandparents compared to the
applicants, as well as the fact that SŠ and VŠ were
closer blood relatives to the girls. Noting RŠ's young age
(then seven years old) and her “emotional instability”
when expressing herself in front of officials, the court rejected her
express wish to live with her “mother” and “father”
(the applicants). The MaZeikiai District Court observed that a
child's wish does not necessarily coincide with its future interests;
therefore the court was not bound by RŠ's opinion. The court
took note of the request of the Child Rights Protection Institution
to give custody of the girls to the applicants, whom the girls
recognised as their “natural family” and who had cared
for them since their parents' death. However, it concluded that the
girls were of a young, adaptable age. As RŠ had lived with the
applicants for a few years, without any memory of her grandparents'
family, she was unable to understand where she would be better off.
- The applicants and the Child Rights Protection
Institution appealed. On 4 November 2002 the Šiauliai Regional
Court confirmed the first-instance reasoning and decision after a
written procedure, without an oral hearing of the parties.
- The applicants and the Child Rights Protection
Institution lodged cassation appeals.
On 8 November 2002 the President of the Supreme Court suspended the
execution of the MaZeikiai District Court's decision until the
cassation appeal could be examined. On 12 February 2003 the Supreme
Court held that it had no jurisdiction in child custody cases and
dismissed the cassation application.
- On 21 March 2003, when the bailiff attempted to
execute the courts' decision, RŠ refused to leave the
applicants' home to live with her grandparents. DŠ was taken
to the grandparents.
- On an unspecified date the Prosecutor General,
defending the public interest, filed a request to reopen the
proceedings. The Telšiai District Court reopened the civil
proceedings and, on 8 October 2004, overruled the MaZeikiai
District Court's decision of 28 August 2002. The court granted
permanent custody of RŠ to the applicants, who lived in
MaZeikiai, and permanent custody of DŠ to the grandparents,
who lived in Klaipėda. When deciding to separate the sisters,
the court noted the wish of RŠ to stay with the applicants and
the wish of DŠ to stay with her grandparents. The court also
observed that, since March 2003, the girls had lived separately and
were used to their current environments.
- The grandparents appealed to the Šiauliai
Regional Court, which on 22 November 2004 upheld the lower
court's decision. The appellate court was of the opinion that it had
been reasonable for the first-instance court to take into
consideration the interests of each child and not to consider them as
an inseparable unit. The court noted that the children should be
provided with the most suitable and best conditions to meet their
personal interests in the most advantageous way. Therefore the court
found that the principle of not separating siblings had been
justifiably overruled. It also held that the principle of placing
children within the family had not been violated. The court pointed
out that it was not only blood ties which mattered when choosing
placements, but also the individuals to whom the child felt closest.
- On 6 June 2005 the Supreme Court gave a final
ruling and upheld the decision of the Šiauliai Regional Court.
Agreeing with the reasoning of the lower courts, it observed that
during the initial proceedings the MaZeikiai District Court had made
a mistake by not giving primary consideration to the wishes of RŠ.
The Supreme Court also noted that the evidence in the case showed the
existence of a conflict between the two guardianship families. It
noted that proper conditions should be created so that the girls
could communicate with each other, giving the primary importance of
the children's interests over those of their guardians. This was an
obligation for the State authorities to fulfil.
II. RELEVANT DOMESTIC LAW
17. The questions related to child custody are regulated by the
Civil Code (Civilinis kodeksas), the relevant articles of
which read as follows:
Article 3.164. Involvement of a minor in the
assurance of his or her rights
“1. In considering
any question related to a child, the child, if capable of formulating
its views, must be heard directly or, where that is impossible,
through a representative. Any decisions on such a question must be
taken with regard to the child's wishes unless they are contrary to
the child's interests. In making a decision on the appointment of a
child's guardian/curator or on a child's adoption, the child's wishes
shall be given paramount consideration ...”
Article 3.248. The purpose and objectives of child
custody/curatorship
“1. The purpose of child custody/curatorship is
to ensure the child's upbringing and care in an environment which
would facilitate the child's growing up, development and progress.
2. Objectives of child custody/curatorship:
1) to appoint for the child a guardian whose duty it
will be to take care of the child, bring it up, to represent the
child and protect its rights and legitimate interests;
2) to provide the child with living conditions which
would be adequate for its age, state of health and development level;
3) to prepare the child for independent life in a family
and in society.”
Article 3.249. Principles of establishing child
custody/curatorship
“1. The establishment of child
custody/curatorship shall be governed by the following
principles:
1) first consideration must be given to the interests of
the child;
2) priority in becoming the child's guardians (curators)
must be accorded to its close relatives, provided this is in the
child's best interests;
3) the child's custody/curatorship in a family;
4) non-separation of siblings, except when this is
contrary to the child's interests. ...
3. When child
custody/curatorship is established or ended, or a guardian is
appointed to a child capable of expressing its views, the child shall
be provided an opportunity to be heard and to influence the decision
making.”
Article 3.257. Placing a child under permanent
custody/curatorship
“A child shall be put under permanent custody
(curatorship) when:
1) both parents or the single parent
of the child are dead...”
Article 3.268. The procedure for the selection of the
custodian/curator for a child
“1. A child's
guardian/curator shall be selected by taking into consideration his
or her personal qualities, state of health, abilities to function as
a guardian/curator, relations with the child deprived of parental
care, and the interests of the child...”
18. The Law on the Fundamental
Protection of the Rights of the Child (Vaiko teisių apsaugos
pagrindų įstatymas), insofar as relevant to this case,
provides as follows:
Article 4. General Provisions in Defence of the
Rights of the Child
“Parents, other legal representatives of the
child, the State, municipal government, public institutions and other
natural and legal persons must abide by the following provisions and
principles:
1) the legal interests of the child must always and
everywhere be given priority ...
5) no child must be left without a home, minimum
funds for subsistence and care or custody...”
Article 23. Right of the Child to
Live with Parents or Persons Representing Them
“1. A child shall have the right to live with its
parents or other legal representatives.
2. To separate a child from its parents or its
other legal representatives against the will of the child, as well as
that of its parents (legal representatives), shall
be permitted only in exceptional circumstances,
provided for by laws and according to
the established procedure, based upon a
court decision and when such a separation becomes necessary
for the child (striving to avoid danger to the life and health of the
child, or it becomes necessary to take measures in relation to its
care and upbringing or to protect other important interests of
the child).”
19. Under Articles 31222
and 31223 of the
Code of Civil Procedure, as in force at the material time, in child
custody cases a court was to hold a hearing during which a child
could express his or her opinion. Under Article 347 of the Code the
parties could bring a separate appeal (atskirąjį skundą)
against a decision of a first instance court. Article 349
stipulated that the appellate court would determine such appeals by
way of a written procedure. According to Articles 334 and 3501
of the Code, the appellate court, when examining a separate appeal,
had a right to examine de novo evidence, as well as evidence
which had already been examined by the first instance court.
Therefore the appellate court could decide both questions of law and
fact.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicants alleged an infringement of the right to
respect for their family life, in that the courts originally awarded
custodianship of their two orphaned nieces, with whom they had lived
for three years, to the children's paternal grandparents. They also
claimed that the custody proceedings before the domestic courts had
lasted almost four years, thereby breaching the “reasonable
time” requirement of Article 6 § 1 of the Convention. They
further submitted that there had been a violation of Article 2 § 1
of Protocol No. 4 to the Convention claiming, that the girls had
initially not been able to choose their place of residence.
- The Court considers that all these complaints are in
essence related to an alleged violation of the right to respect for
family life guaranteed by Article 8 of the Convention, on which the
Court will concentrate its examination in this case and which reads
insofar as relevant as follows:
“1. Everyone has the right to respect
for his ... family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ...
for the protection of the rights and freedoms of others.”
A. The parties' submissions
1. The Government
22. The Government first contended that, taking into account the
young age of the girls when they were placed with the applicants'
family, it was not possible to state unambiguously that the ties
between the girls and the applicants were strong enough to be
qualified as “family life” within the meaning of Article
8 of the Convention. Therefore, in the original award of permanent
custody of both children to SŠ and VŠ, the State had
not interfered with the applicants' rights.
- The Government further submitted that the complaint
was inadmissible as being manifestly ill-founded. They argued
that, since the applicants had lodged the application with the Court,
the circumstances of the case had significantly changed, with
separate custody arrangements being made for the two girls in the
reopened proceedings, in line with the girls' wishes, and an
obligation on the part of the authorities to ensure that the sisters
could continue to communicate with each other properly. In these
circumstances, the Government concluded that the State had not
violated the applicants' right to respect for their family life.
2. The applicants
- The applicants maintained that the domestic courts'
original decision to award custody of RŠ and DŠ to the
paternal grandparents had been without reason. They argued that the
courts had reached their conclusions regardless of the fact that RŠ
and DŠ had lived with them for most of their lives, and that
the girls had come to know them as their natural parents and the
applicants' own children as their natural brother and sister. The
applicants contended that, during the hearing at the MaZeikiai
District Court, RŠ, whose ability to comprehend objectively
the situation had been confirmed by the Child Rights Protection
Institution, had expressed her clear wish to stay with the
applicants. Therefore the court could have foreseen the future
problems regarding the execution of such a decision. However, the
court ignored her wishes as well as the domestic legislation which
provides that, in custody proceedings, particular attention should be
paid to the wishes of the child and to the principle of the
non-separation of siblings.
- The applicants further observed that the Šiauliai
Regional Court on 4 November 2002 determined their appeal by way
of a written procedure, without hearing the parties, even though it
was deciding not only legal but also factual matters. This decision
of the Šiauliai Regional Court was decisive in the case as, on
12 February 2003, the Supreme Court rejected the cassation
appeal. The applicants claimed that the decision of the Šiauliai
Regional Court regarding the grant of custody of RŠ to her
grandparents had proved impossible to execute and this had been the
major reason why the domestic courts had reopened the proceedings and
had amended the original judgment. Thus, the custody questions were
first solved de facto, and the courts only later formalised
the situation.
- The applicants argued that their complaints should
only be determined by the Court in the light of the original domestic
decisions, prior to the introduction of their application to the
Court. They observed that, after the reopening of the case, the
courts had only partly found in their favour. The applicants
nonetheless noted that they had never appealed, nor would they ever
appeal, against the final court decisions in the reopened proceedings
to separate the sisters because of the moral damage which the
proceedings had already caused to RŠ.
B. Admissibility
- The Court recalls that, in accordance with its
case-law, the existence of “family life” is essentially a
question of fact depending upon the genuineness of close personal
ties (see, K. and T. v. Finland [GC], no. 25702/94,
§ 150, ECHR 2001 VII). In the present case, the
applicants had lived with RŠ and DŠ since their
parents' death in April 1999 until February 2003, when the
grandparents were granted permanent custody of both girls. The Court
notes that, during this period, the applicants had initially been
appointed as temporary custodians and later took legal steps to adopt
the girls. A clear intention of continuing their life together can
thus be deduced. The Court also takes into account the fact that RŠ
refused to leave the applicants' home when the authorities attempted
to execute the court decision to send her to her grandparents (see
paragraph 13 above). In these circumstances, the Court cannot but
find that, at the time of the authorities' intervention, there
existed between the applicants and the girls a genuine “family
life” within the meaning of Article 8 § 1 of the
Convention.
The Court will take into account the reopened proceedings only for
the purpose of assessing whether there was a violation of Article 8
in the initial civil proceedings, complained of by the applicants.
- In the light of the parties' submissions, the Court
finds that the application is not manifestly ill-founded. As there
are no other grounds warranting the rejection of the application, the
Court concludes that it must be declared admissible.
C. The merits
- There is no doubt that the MaZeikiai District Court's
decision of 28 August 2002 and the Šiauliai Regional
Court's decision of 4 November 2002, which led to the placement of DŠ
with her grandparents and, subsequently, the applicants' exclusion
from her upbringing, disrupted the relationship between the
applicants and DŠ. Moreover, until the ruling of the Supreme
Court of 6 June 2005, their relationship with RŠ must
have been perturbed by uncertainty.
In the Court's view this situation amounted to an interference with
the applicants' right to respect for family life guaranteed by
Article 8 § 1 of the Convention.
- The Court recalls that, whilst Article 8 of the
Convention contains no explicit procedural requirements, the
decision-making process leading to such an interference must be fair
and such as to afford due respect for the interests safeguarded by
Article 8 (see McMichael v. the United Kingdom, judgment of 24
February 1995, Series A no. 307 B, § 87).
Consequently, the Court must first determine whether, having regard
to the particular circumstances of the case and notably the serious
nature of the decisions to be taken, the applicants were sufficiently
involved in the decision-making process, seen as a whole, in order to
ensure the requisite protection of their interests. If they have not,
there will have been a failure to respect their family life, because
the interference could not be regarded as having been “necessary”
within the meaning of Article 8 (see, mutatis mutandis, W.
v. the United Kingdom, judgment of 8 July 1987, Series A
no. 121, p. 29, § 64).
- As regards the instant case, the Court notes that the
Šiauliai Regional Court determined the applicants' appeal by
way of a written procedure. The Court has recognised that, provided a
public hearing has been held at first instance, the absence of a
second hearing on appeal may be justified by the special features of
the proceedings at issue. Thus, leave-to-appeal proceedings and
proceedings involving only questions of law, as opposed to questions
of fact, may comply with the requirements of Article 6 (paragraph 34
below), although the appellant was not given an opportunity of being
heard in person by the appeal or cassation court (see Helmers v.
Sweden, judgment of 29 October 1991, Series A no. 212 A,
§ 36). However, the Court observes that the Šiauliai
Regional Court essentially had to determine a factual question,
namely, whether the applicants or the grandparents should be granted
permanent custody of the orphaned girls (see, a contrario,
Valová, Slezák and Slezák v. Slovakia,
no. 44925/98, 1 June 2004, §§ 61-69). Thus the
proceedings were of crucial importance for the applicants and
involved the assessment of their character as well as the motives and
wishes of the girls. In the Court's view, this was a question of fact
which could not be adequately resolved on the basis of the case file.
In such circumstances, where evaluations of this kind played
such a significant role and where their outcome could be of major
detriment to the applicants, it was essential to the fairness of the
proceedings that the appellate court hold a hearing and afford the
applicants and the girls an opportunity to be heard and fully
participate in order to ensure the best interests of the orphaned
children in the future.
- The Court also recalls that effective
respect for family life requires that future relations between parent
and child should not be determined by the mere effluxion of time (see
W. v. the United Kingdom,
judgment of 8 July 1987, Series A no. 121, p. 29, § 65).
However this is what happened in the present case. It was RŠ'
continued resistence to the enforcement of the decisions of the
MaZeikiai District Court and the Šiauliai
Regional Court that she should be in the permanent
custody of SŠ and VŠ which led to
the reopening of the proceedings. Thereby, the courts were prompted
to amend those decisions and to rule partly in favour of the
applicants by granting them the custody of RŠ
(see paragraphs 15-17 above). Moreover, the Supreme Court
acknowledged the mistake which the lower courts had made when
applying the domestic law (see paragraph 16 above). Finally,
the Court notes the position of the Supreme Court that proper
conditions should be created so that the two girls could communicate
with each other. This remains an obligation for the State authorities
to fulfil.
33. In the light of the foregoing
considerations, the Court concludes that the initial decision-making
process which fixed the custody and access arrangements in relation
to RŠ and DŠ did not afford the requisite protection of
the applicants' interests as safeguarded by Article 8. There has
accordingly been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The applicants also complained under Article 6 §
1 of the Convention of the written nature of the appeal proceedings
before the Šiauliai Regional Court. This provision, in its
relevant part, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ... by [a] ...
tribunal...”
- The Government submitted that the complaint was
manifestly ill-founded.
- The Court notes that this complaint is closely linked
to that made under Article 8 of the Convention. It must therefore
likewise be declared admissible. However, the essence of the
merits of this element has been examined in detail above and a
violation of the right to respect for family life has been
established (paragraphs 30-33). Consequently, the Court finds it
unnecessary to consider the matter separately under Article 6 §
1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly, again relying on Article 6 § 1 of the
Convention the applicants complained that the Šiauliai
Regional Court had been biased. They also complained that they had
not had an effective domestic remedy, within the meaning of Article
13 of the Convention, as the courts had ignored their request for an
expert report to determine certain factual questions in the case.
- The Court has examined the remainder of the
applicants' complaints as submitted by them. However, having regard
to all the material in its possession, it finds that these complaints
do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicants claimed 100,000 Lithuanian litai (LTL)
(approximately 28,962 euros (EUR)) in respect of non-pecuniary
damage.
- The Government contested these claims as being
unsubstantiated and excessive.
- The Court considers that the applicants may be
considered to have suffered some non-pecuniary damage as a result of
the breach of their rights which cannot be compensated by the Court's
finding of a violation alone. Nevertheless, the amount claimed is
excessive. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards the applicants,
jointly, the sum of EUR 5,000.
B. Costs and expenses
- The applicants also claimed LTL 1,000
(approximately EUR 289) for the costs and expenses incurred
before the domestic courts. However, they had not kept any documents
which would prove their disbursements.
- The Government opposed the claim as being
unsubstantiated.
- In the absence of supporting documentation, the Court
rejects the applicant's claim.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the right to
respect for family life and the written nature
of the appeal procedure admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that it is unnecessary to make a separate
examination of the written nature of the appeal procedure under
Article 6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicants,
jointly, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, which sum
is to be converted into the currency of the responded State at the
rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 25 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
