ITEMID: 001-24015
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GUICHARD v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Jean-Luc Guichard, is a French national who was born in 1947 and lives in Saintes. He was acting before the Court both in his own right and as representative of his minor son, who was born on 29 November 1990 and lives in Montreal.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and M., who were an unmarried couple, had a son, G., who was born on 29 November 1990. Prior to the birth they had made a joint declaration before the registration officer at Châtellerault on 25 April 1990 recognising their son.
On 13 May 1992 M., a Canadian national, unilaterally decided to take G. away to live with her in Montreal.
Several sets of proceedings were subsequently instituted.
In a judgment of 11 May 1993, the Superior Court of Quebec granted M. custody of the child and reserved judgment regarding the applicant’s right to apply to the Quebec Municipal Court to determine his rights of access in respect of the child.
On 21 April 1993 the applicant lodged an application with the President of the La Rochelle tribunal de grande instance, who was the matrimonial causes judge, for joint parental responsibility (with the mother) for his son and for the latter’s habitual residence to be fixed at La Rochelle, where he had lived before leaving France with his mother.
In an order of 24 February 1994, the judge declared that the applicant was estopped by record from applying for joint parental responsibility and determination of G.’s habitual residence because the judgment of the Canadian courts was final. He requested the applicant and M. to sign a parental agreement determining the arrangements regarding G.’s relations with his parents, if necessary by having recourse to family mediation. Subject to a better agreement being reached between the applicant and M., he granted the applicant access for the school holidays.
An appeal does not appear to have been lodged against that decision.
On 10 June 1998 the applicant brought an action against M. in the Saintes tribunal de grande instance, claiming joint parental responsibility for G.
In an order of 16 September 1999, the family-affairs judge held that the applicant was doubly estopped by record from bringing the action because there had been a final decision both by the Superior Court of Quebec on 11 May 1993 and by the La Rochelle matrimonial causes judge on 24 February 1994.
No appeal was lodged against that order.
In a judgment of 14 May 2002, the Saintes Criminal Court sentenced M. to a suspended term of imprisonment of one year and a fine of 750 French francs for failure to hand over a child and to notify a change of address.
On 5 March 1993 the applicant applied to the Minister of Justice, designated by France as the Central Authority responsible for discharging the duties imposed on France by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He asked the Minister to assist him in the manner prescribed by that convention in securing the return of his son, born on 29 November 1990, whom his mother, a Canadian national, had, he alleged, wrongfully removed to Canada on 13 May 1992 to live with her in Montreal.
On 7 June 1993 the Minister of Justice replied in the following terms:
“In reply, and on the basis of the information in my possession, the mother alone had parental responsibility at the time of the removal. Accordingly, the removal cannot be described as ‘wrongful’ within the meaning of the aforementioned convention and an application for the child’s return is in principle bound to fail.”
On 4 March 1994 the applicant sought a declaration from the Paris Administrative Court that he had had parental responsibility for his son at the time of his abduction by the mother and asked the court to set aside the decision of 7 June 1993 by which the Minister of Justice had refused to intervene pursuant to the Hague Convention.
On 21 February 1996 the Paris Administrative Court rejected the application for the following reasons:
“It is not the Administrative Court’s function to deal with disputes between private individuals. The submissions must be dismissed as having been made to a court that lacked jurisdiction to entertain them. ...
The question as to whether it fell to the Minister of Justice to intervene in the manner requested necessarily requires an examination of the relations between the French State and a foreign government. That issue falls outside the jurisdiction of the Administrative Court. Accordingly, the submissions cannot succeed. ...
On 13 May 1996 the applicant appealed to the Paris Administrative Court of Appeal.
In a judgment of 11 July 1997 the Paris Administrative Court of Appeal set aside the judgment of the Administrative Court to the extent that it found that the application to have the Minister of Justice’s decision set aside fell outside the jurisdiction of the Administrative Court. However, it rejected the application for the Minister of Justice’s decision to be set aside for the following reasons in particular:
“... in the judgment being appealed against, the Paris Administrative Court wrongly declared that it lacked jurisdiction to examine the submissions made by [the applicant] against that decision; in that respect the judgment must be set aside.
...
Even supposing that Article 374 of the Civil Code, as amended by Law no. 87-570 of 22 July 1987, which is applicable in the instant case, is contrary to the provisions of Articles 1, 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the provisions of the International Convention on the Rights of the Child of 26 January 1990, the evidence does not show that [the applicant] had parental responsibility for his son on 13 May 1992, when the child was taken to Canada by his mother. Accordingly, on that date he did not have rights of custody in respect of the child. It was therefore clear that the conditions required by the Hague Convention were not fulfilled; the Minister was subsequently able, under the aforementioned provisions of Article 27 of the said convention, to reject the application for intervention made by the applicant. It follows that [the applicant] has no basis on which to argue that, in the decision being challenged, the Minister of Justice wrongly rejected that application ...”
On 7 November 1997 the applicant applied to the Conseil d’Etat to set aside the judgment of 11 July 1997. In a judgment of 30 June 1999 the Conseil d’Etat set aside the judgment of the Paris Administrative Court of Appeal and the judgment of the Administrative Court of 21 February 1996 in so far as it had dismissed the submissions as having been made to a court that lacked jurisdiction to entertain them. It rejected the application lodged by the applicant with the Administrative Court and the remainder of the submissions in the application lodged before it for the following reasons in particular:
“... [The applicant] is ... justified in requesting the Court to set aside the part of the operative provisions of the judgment of the Paris Administrative Court of Appeal which, after setting aside the judgment delivered at first instance by the Paris Administrative Court, dismissed the submissions he had lodged with the court to have the Minister of Justice’s decision of 7 June 1993 set aside.
In the circumstances of the present case, an examination under section 11(2) of the Law of 31 December 1987 is necessary in order to dispose of the case on the merits.
... It is incumbent on an administrative court to rule on the submissions [by the applicant] to have [the decision of the Minister of Justice] set aside. The Administrative Court thus wrongly dismissed the submissions as having been made to a court that lacked jurisdiction to entertain them. Its judgment of 21 February 1996 must be set aside in that regard.
The application lodged by [the applicant] with the Paris Administrative Court must be heard and determined immediately.
...
[The] provisions [of Article 374 of the Civil Code, in the applicable version] which, in a case such as this where the child has been recognised by both parents, provide that parental responsibility is to be exercised by the mother but give the father the possibility, by a decision of the matrimonial causes judge, to exercise that authority himself, either alone or jointly with the mother, and, if appropriate, to have his home designated as the child’s habitual residence, are not incompatible with the combined requirements of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by which the right to respect for family life must be secured without discrimination on any ground, such as sex.
... the aforementioned provisions of Article 374 of the Civil Code which determine, in the child’s interests alone, which of the parents is to exercise parental responsibility for him or her, are not incompatible with the provisions of Articles 3-1 and 16 of the [International] Convention [of 26 January 1990 on the Rights of the Child], which proclaim the paramount interests of the child and the child’s right to the protection of the law.
The evidence clearly shows that [the applicant], who does not allege that the aforementioned provisions of the second or third paragraphs of Article 374 of the Civil Code would have been applied in his favour, did not have the exercise of parental responsibility for his son [G.] when the child’s mother took him to Canada on 13 May 1992. Accordingly, he did not have rights of custody over the child on that date for the purposes of Article 5 of the Hague Convention, and, in particular, he did not have a right to determine the child’s habitual place of residence. Accordingly, the Minister of Justice did not commit any error of law in his decision of 7 June 1993 in considering that the removal of [G.] could not be described as ‘wrongful’ within the meaning of that convention.
... the submissions by which [the applicant] sought a stay of the Administrative Court’s decision regarding his application must therefore be dismissed. ...”
“A child’s father and mother are responsible for protecting the child’s safety, health and morals.
They have a right and a duty to look after, supervise and bring up their children.”
“Where a child born out of wedlock has been recognised by only one of his or her parents, parental responsibility shall vest in the parent who has voluntarily recognised the child. Where the child has been recognised by both parents, parental responsibility shall vest in the mother.
Parental responsibility may be exercised jointly by both parents if they make an appropriate joint declaration before the guardianship judge.
At the request of the father or the mother or State Counsel, the matrimonial causes judge may modify the arrangements for exercising parental responsibility and decide that it shall be exercised either by one of the parents or by the father and mother jointly; in that event the judge shall indicate with which parent the child shall habitually reside.
The matrimonial causes judge may always grant an access and supervision right to the parent who does not have parental responsibility.
Where parental responsibility is exercised jointly, Articles 372-1 and 372-2 shall apply as though the child had been born in wedlock.”
The Hague Convention was ratified by France on 16 September 1982 and came into force on 1 December 1983, when it also came into force in respect of Canada. The relevant provisions are worded as follows:
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“For the purposes of this Convention:
(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
...”
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) to discover the whereabouts of a child who has been wrongfully removed or retained;
(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) to exchange, where desirable, information relating to the social background of the child;
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;
...
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”


ITEMID: 001-114579
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DACHNEVIČ v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
JUDGES: Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1944 and lives in Šalčininkai.
6. In May 2002 the applicant approached the Children’s Rights Protection Agency of Šalčininkai District Council for a determination of whether she could become the legal guardian of her grandson, J.B. The Government specified that the Agency had provided the applicant with the information requested, but the applicant had never submitted an official application for guardianship.
7. On 26 April 2003 M.B., who did not possess a driver’s licence, was driving a car and caused a car accident. As a consequence, the applicant’s grandson J.B., who had been a passenger in the car, died from his injuries. He was 16 years old. Two other passengers were seriously hurt.
8. The applicant was granted the status of a victim in criminal proceedings in respect of M.B. When being questioned by an investigator on 10 and 20 June 2003, she stated that she did not speak the Lithuanian language. On the latter date, the applicant submitted a civil claim which was written in Russian and translated by a translator from a police station. She claimed 12,311 Lithuanian litai (LTL) in respect of pecuniary damage, listing expenses which she had incurred in connection with her grandson’s funeral. The applicant also claimed LTL 5,000 in respect of non-pecuniary damage.
9. On 17 September 2004 the Šalčininkai District Court, following criminal proceedings, found M.B. guilty of dangerous driving which had resulted in the death of a person (Article 281 § 5 of the Criminal Code). He was sentenced to four years’ imprisonment, but the execution of the sentence was suspended for two years. The court did not pronounce on whether M.B. had been driving while intoxicated.
During the hearing, where the applicant, an interpreter, M.B. and his lawyer were present, the applicant asked that LTL 15,000 be awarded to her in compensation for pecuniary and non-pecuniary damage. The prosecutor asked the court to grant the request. M.B. stated that he could pay the applicant LTL 500 each month.
The criminal court left the applicant’s civil claim to be examined in separate civil proceedings.
10. On 5 April 2005 the applicant instituted civil proceedings, claiming LTL 11,260 for pecuniary and LTL 3,740 for non-pecuniary damage. She stated that before his death her grandson had lived with her, as his mother lived in the Republic of Kazakhstan and his father had another family. M.B.’s death had caused the applicant severe emotional distress. In the applicant’s understanding, the criminal court had already awarded her the sum of LTL 15,000 in disposing of the criminal proceedings. She noted that although two years had passed since the car accident, M.B. had not paid her the money. The applicant also referred to the possibility that, in the event that M.B. was in a difficult financial situation, compensation for the damage she had sustained might be paid to her in several instalments rather than as a lump sum.
The Government have provided the Court with an invoice from a law firm to the effect that on 6 April 2005 the applicant paid LTL 30 for “legal services”.
11. On 2 June 2005 the applicant presented the court with an estimate of her loss in connection with her grandson’s death. She claimed LTL 15,000 in total. That sum consisted of LTL 11,260 for pecuniary damage, which included a detailed calculation of her grandson’s burial costs, and LTL 3,740 in compensation for non-pecuniary damage.
12. In a written response M.B. asked the court to grant the claim in part and to award the applicant LTL 4,000.
13. Seeing the potential for the parties to reach a friendly settlement, on 14 June 2005 the judge held a preliminary hearing. The applicant, an interpreter, M.B. and his lawyer were present. As is evident from the transcript of the hearing, after the judge had explained the parties’ rights to them, the applicant asked the court to include a calculation of her expenses in the case file. M.B.’s lawyer, without making any other observations or statements, asked that documents concerning M.B.’s salary and family situation also be included in the file. Both requests were granted.
When asked to present her arguments and claims on the merits, the applicant stated that during the criminal proceedings she, the prosecutor, M.B. and his lawyer had agreed that M.B. would pay her LTL 15,000 in compensation under both heads. However, M.B. had paid nothing so far. The applicant argued that her financial situation was not good. She had no further requests.
M.B. acknowledged the civil claim in part, but stated that the sum of LTL 15,000 was too high.
The court held that the case should be decided following a court hearing with the participation of the parties and an interpreter.
14. On 6 July 2005 the applicant sent the court a letter, raising the claim for compensation in respect of non-pecuniary damage by LTL 5,000 and requesting that she be awarded LTL 8,740 in total under that head. She noted that her family had been suffering for more than two years and implied that no steps towards reconciliation had been taken on M.B.’s part.
15. According to the transcript of the Šalčininkai District Court hearing of 8 July 2005, the applicant, an interpreter and the lawyer for M.B. took part in that hearing. It was also noted that the judge had explained the parties’ rights to them and that the parties understood them. The judge also asked the parties to put forward any requests, if they had any. The applicant asked the court to include her modified compensation claim in the case file. Given that the other party did not object, the judge accepted the modified claim.
When hearing the case on the merits, the applicant again explained to the court that during the criminal proceedings the parties had come to an oral agreement that M.B. would pay her LTL 15,000, but to that day he had paid nothing. She presented a very detailed calculation of her expenses, based on invoices, for her grandson’s funeral and headstone construction costs. All in all, the applicant asked the court to award her the sum of LTL 11,260 in compensation for pecuniary damage and LTL 3,740 in compensation for non-pecuniary damage.
The lawyer for M.B. acknowledged that, given that her client had already been found guilty in criminal proceedings, only the question of damages remained. She also accepted that the applicant had suffered non-pecuniary damage because of her grandson’s death. That being so, the lawyer asked the court to grant the applicant’s civil claim in part and to award her payment of the costs which were justified by invoices. As to non-pecuniary damage, the lawyer asked the court to make an award which would be reasonable and fair, taking into account the economic situation in Lithuania and the fact that M.B. only had a low salary and had no other property.
The judge noted that the court’s decision would be announced on 12 July 2005.
16. On 12 July 2005 the Šalčininkai District Court granted the applicant’s claim in part. The court took notice of M.B.’s conviction for dangerous driving and held that, consequently, it was not necessary to prove his liability in the civil proceedings. M.B. was ordered to fully compensate the pecuniary damage he had caused to the applicant by her grandson’s death. Having had regard to the documents before it, the court awarded the applicant LTL 7,936 in compensation for pecuniary damage.
17. As to non-pecuniary damage, the Šalčininkai District Court took note of the applicant’s claim that the loss of her grandson had caused her great mental suffering. For the court, it was nonetheless important to point out that the car accident had been caused by M.B.’s recklessness, and not deliberately. It was also relevant that M.B. was relatively poor: he had a job but his salary was low (the court did not specify the level of salary in the decision), and he had no other property or income. Moreover, M.B. was a young person, therefore “the amount of compensation was not to ruin his life”. Relying on the above arguments, the Šalčininkai District Court awarded the applicant LTL 3,000 in compensation for non-pecuniary damage.
18. The applicant appealed, arguing that the award of damages was too low and asking that the case be remitted to the first-instance court for fresh examination, “in accordance with Article 326 § 1 (4) of the Code of Civil Procedure”. She submitted, with references to specific provisions of that Code, that the first-instance court had breached the principle of adversarial proceedings, the principle of the parties’ procedural equality and a person’s right to State legal aid. The applicant argued that she, as a Russian-speaking person of old age and little education, had not been able to properly exercise her rights at the hearing and effectively assert her claim. Neither had she been able to effectively support her claim by evidence.
19. In her appeal, the applicant also wrote that the judge hearing her case at the Šalčininkai District Court, just before the preliminary hearing concerning her claim and without noting it down in the transcript, had suggested to her that she find a lawyer. According to the applicant, the lawyer she approached had asked her to pay LTL 2,000 for legal services. The applicant had no such money and had therefore had to represent herself before the court of first instance. According to her, the same lawyer in fact had represented M.B. before the court. Only after the first-instance court had adopted the decision on the merits had the applicant found out that she had had the right to free legal aid, paid for by the State. In her view, had she had a lawyer, she would have been in a much better position to defend her interests and to obtain a court decision that would have fulfilled her expectations.
20. The appeal hearing before the Vilnius Regional Court took place on 25 October 2005, in the presence of the applicant and an interpreter. Neither M.B. nor his lawyer took part in that hearing, although M.B. had been informed of its date. As is evident from the transcript of the hearing, after the presiding judge explained the applicant’s rights to her, the applicant asked the court to admit in evidence two documents about her and her husband’s state of health. The request was granted. The applicant also submitted that she and her husband had been raising their grandson, J.B., as of 2001. After his death, there was no one to help them in the household. The applicant asked the court to grant her civil claim on the basis of the submissions that she had already made in writing.
21. By a ruling of 8 November 2005, the Vilnius Regional Court dismissed the applicant’s appeal. The court noted that at hearings on 14 June and 8 July 2005 the first-instance court had explained the applicant’s procedural rights to her, in the presence of an interpreter, and that the applicant had understood those rights. There was no information in the case file leading to the conclusion that the Šalčininkai District Court had breached the rules of civil procedure or the principles mentioned by the applicant. The court held that the applicant’s suggestion that her claim would have been fully granted if she had had a lawyer was unfounded, as a lawyer’s participation in proceedings could not guarantee a favourable outcome. Moreover, the fact that M.B. had been represented by a lawyer with whom the applicant had failed to conclude an agreement to represent her did not affect the lawfulness and fairness of the decision the first-instance court had adopted.
22. The Vilnius Regional Court noted that before the accident, the applicant’s grandson J.B. had lived with her for a couple of years and had often helped her, and that she had indeed lost the opportunity to communicate with him and to receive help from him. Nonetheless, the compensation award of LTL 3,000 for non-pecuniary damage which the first-instance court had made was reasonable. The lower court had also been correct in taking into account the fact that the applicant’s grandson had died because of M.B.’s recklessness and not because of a premeditated crime, as well as M.B.’s difficult financial situation. Lastly, the Vilnius Regional Court found that the written evidence about the applicant’s state of health that she had submitted to the appellate court did not give grounds to annul the first-instance court’s decision.
23. On 7 February 2006 the applicant submitted an appeal on points of law, drafted by a lawyer. She reiterated her argument that because she was a Russian-speaking person of old age, poor health and with little education, she had been unable to protect her interests properly in court without professional legal assistance. The applicant drew the Supreme Court’s attention to its ruling of 7 December 2005 (see paragraph 29 below), arguing that the lower courts should have taken the above factors into account. She also argued that the lower courts had wrongly established that M.B. had caused the car accident merely by not being careful. In the applicant’s view, M.B. had been openly reckless: he had had no driving licence and had been speeding. She did not argue that M.B. had been driving drunk. The applicant asked the Supreme Court to grant her civil claim in full and to award her the money she had paid for legal representation.
M.B. did not lodge a response to the applicant’s appeal on points of law.
24. On 15 May 2006 the Supreme Court, in written proceedings, dismissed the applicant’s appeal on points of law. It noted that non-pecuniary damage was always to be compensated when a loss of life had occurred because of a crime. In this case, M.B. had not questioned his liability, the dispute thus concerning only the sum to be awarded in compensation for non-pecuniary damage. The Supreme Court also observed that the applicant’s grandson had died not because of M.B.’s premeditated actions, but because of his being reckless when driving and violating traffic rules. The lower courts had taken all the circumstances into account when assessing the amount of compensation. It was also noteworthy that the award of LTL 3,000 was close to the initial sum that the applicant had asked for in bringing the claim on 5 April 2005. Only later had she raised that claim by LTL 5,000 (paragraph 14 above). Should the Supreme Court raise the amount of compensation, it would mean re-evaluating the facts of the case de novo, and this was not within the competence of that court.
The Supreme Court did not pronounce on the applicant’s claim that she had not been in a position to effectively defend her interests before the first-instance and appellate courts.
25. In response to a request for information by the Government, on 8 June 2011 Šalčininkai Council wrote that people living in the municipality are informed of free legal aid via a local newspaper, published in both the Lithuanian and Russian languages. They can also obtain leaflets on the subject at the council’s offices. Lastly, information about free legal aid is presented on billboards at the Šalčininkai District Court. Should a person request State legal aid, he or she can submit such a request without necessarily having to do so in the Lithuanian language.
26. The Code of Civil Procedure (hereinafter – “the CCP”) provides that court proceedings are conducted in the country’s official language, that is, Lithuanian (Article 11). Civil proceedings are adversarial and each party must prove the facts it relies upon (Article 12).
27. Practice direction no. A3-112 of the Supreme Court of 7 October 2004 reads as follows:
“... The limits of a civil claim are defined by the ... entirety of the material legal basis [for the claim] indicated to the court (the subject of the claim) and by the evidence with which the requirements [of the law] are fulfilled (the factual basis of the claim). Since, according to Article 42 § 1 of the CCP, only the plaintiff has the right to change the subject or the basis of the civil claim, [or] to increase or decrease the claim, the court when adopting a procedural decision may not overstep the limits of the civil claim; i.e. may not change the subject of the civil claim (the court may not adjudge something that was not requested by the plaintiff (extra petita) or adjudge a higher amount than was requested (ultra petita), nor change the basis of the civil claim (in its decision the court cannot rely on facts that were not indicated by the plaintiff or evidence that the case file does not contain) (Article 265 § 2 of the CCP)).”
28. The Supreme Court’s ruling of 20 December 1999 in civil case no. 3K-3-904/1999 reads as follows:
“... The principle of equality of arms has an immediate connection with the fundamental principles of civil proceedings – those of adversarial proceedings and control of the litigation by the parties (dispozityviškumas). It has been established by the CCP that all civil cases in all courts shall be examined in accordance with the principle of adversarial proceedings. This m, only assesses the evidence, establishes the responses are based. The court thus does not examine facts or collect evidence on its own initiative, but has to explain the parties’ rights to them and equally assist them in exercising those rights when the parties are in need of such assistance (for example, to obtain certain evidence on a party’s request, when that party does not have access to such evidence). The court however is not entitled to take the side of one of the parties and help [that party] to collect evidence, as in such a case not only would the principle of adversarial proceedings, but also the principles of equality of arms and impartiality of the court be violated ...”
29. On 7 December 2005 the Supreme Court, when assessing the pecuniary damage a claimant had sustained as a consequence of her injury during a car accident, noted that the claimant’s personality, age and state of health were circumstances to be taken into consideration when assessing her capacity to collect and present evidence (ruling in civil case no. 3K-3-643/2005).
30. On the issue of explaining the parties’ rights, in its ruling of 23 June 1999 in civil case no. 3K-3-323/1999 the Supreme Court held:
“... The courts are bound by the CCP to explain to the persons taking part in the proceedings their rights and obligations ... Such [an] obligation on the court, however, does not mean that the court is bound to indicate what specific requests a party should submit or what specific means of defence against a civil claim a party should use in a particular case ...”
31. If the presiding judge considers that a party to civil proceedings is incapable of adequately protecting its rights, he or she may suggest that that party obtain legal representation (Article 161 of the CCP).
32. According to Article 182 § 3 of the CCP, in civil proceedings it is not necessary to prove de novo facts that have been proved in criminal proceedings in which a court judgment has entered into force.
An appellate court may quash the first-instance court’s decision in part or in its entirety and refer the case for fresh examination (Article 326 § 1 (4)).
An appeal on points of law must be drafted by a lawyer (Article 347 § 3). The court reviewing such an appeal is bound by the facts established by lower courts and may only decide questions of law (Article 353 § 1).
33. Free legal aid is regulated by the Law on State Legal Aid. It is provided by, inter alia, State-funded legal aid services (“Services”), municipal authorities and the Lithuanian Bar. Each municipal authority and Service must regularly inform local residents about the possibility of receiving free legal aid. The law defines two categories of legal aid. Primary legal aid, that is the provision of legal information, legal advice, and drafting of documents to be submitted to municipal authorities and State institutions, is provided for at the municipal level. When a person wishes to receive secondary legal aid, which consists of drafting procedural documents and representation in court, he or she must address the Service of that court’s geographical area and prove his or her eligibility, which depends on the individual’s financial means.
34. Pursuant to Article 281 § 5 of the Criminal Code, a person who has caused a car accident that has resulted in the death of a person may be punished by deprivation of liberty for up to eight years.
35. Article 6.263 of the Civil Code provides that pecuniary loss resulting from any bodily or property damage caused to another person and also, in cases established by the law, non-pecuniary damage must be fully compensated by the person liable.
36. Under Article 6.250 of the Civil Code, non-pecuniary damage is deemed to be a person’s suffering, emotional distress, inconvenience, mental shock, emotional depression, diminution of the chance to associate with others, and so on, as evaluated by a court in monetary terms. Non-pecuniary damage is to be compensated in all cases where it has occurred due to crime, injury to health or loss of life, as well as in other cases provided for by law. In assessing the amount of non-pecuniary damage, a court must take into consideration the consequences of such damage sustained, the extent to which the person who caused the damage was at fault, his financial status and any other circumstances of importance for the case, in addition to the criteria of good faith, fairness and reasonableness.
37. In their observations on the admissibility and merits the Government provided four examples of domestic case-law regarding compensation for wrongful death. They noted the 17 May 2005 decision of the Court of Appeal in case no. 2A-138/2005, wherein compensation in the sum of LTL 70,000 was awarded to each of two children whose father had died in a car accident; LTL 50,000 was awarded to his spouse and LTL 25,000 to each of his parents. In addition, the court awarded monthly maintenance costs for the children. The defendant in that case was the Chancellery of the Lithuanian Parliament, whose driver had caused the accident.
By a decision of 4 October 2004 in civil case no. 3-3K-511/2004, the Supreme Court awarded LTL 50,000 each in respect of non-pecuniary damage to two minor children and their grandmother, whose mother and daughter, respectively, had died because of medical malpractice. Compensation for pecuniary damage in the sum of LTL 7,053 was also awarded. The court awarded LTL 145 per month to each of the children until they reached the age of majority.
By a ruling of 26 April 2005 in civil case no. 3K-7-159/2005, the Supreme Court awarded the sum of LTL 7,000 in compensation for non-pecuniary damage to a mother whose son had been killed in a car accident. The sum of LTL 8,000 was awarded to compensate pecuniary loss.
Lastly, the Government referred to the ruling of 28 August 2007 in civil case no. 2A-362/2007 by the Court of Appeal, where LTL 5,000 was awarded in compensation for non-pecuniary damage to the claimant, whose mother had been murdered. The court noted that the son was not in close contact with his mother.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86032
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SILIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1970 and lives in Moscow.
7. On 28 August 2000 the applicant was detained on suspicion of having committed a crime punishable under Article 126 of the Criminal Code (attempted kidnapping by a group). A report on his detention stated that eyewitnesses, including victims, had identified him as the perpetrator and that other grounds existed for suspecting him of having committed the crime.
8. On 30 August 2000 an investigator ordered him to be detained pending trial pursuant to Article 90 of the Code of Criminal Procedure. The investigator took into account the dangerousness and seriousness of the offence, the risk of the applicant’s absconding and obstructing the investigation, and the need to examine his implication in other similar crimes. Next day, the order was upheld by the acting prosecutor of the north-east administrative district of Moscow.
9. On 7 September 2000 the applicant was charged on several counts, including the use of violence dangerous to life against a State official in the performance of his duties, attempted aggravated kidnapping by an organised group and conspiracy to murder. The investigation established that the applicant had entered into agreement with P., the head of an organised criminal group acting in Moscow and the Moscow Region, and had commissioned him in January and then in February 1999 to beat F. and T., who had occupied senior positions in the Customs office. F. had been beaten up by three persons, the identity of one of whom had not been established by the investigation, with baseball bats in the porch of his apartment block; he had suffered open craniocerebral trauma as a result. T. had been beaten up and had received knife wounds. The investigation also established that later in 1999 the applicant had commissioned the same organised group to kidnap Sh., for the purpose of blackmail. Each time the applicant had paid P. remuneration. He had allegedly acted on the instructions of a person whose identity had not been established by the investigation. As well as these three criminal cases joined into one case, the latter was joined with one more case of infliction of bodily harm involving the same organised group.
10. On 23 October and 1 November 2000 the investigator ordered that the term of the applicant’s pre-trial detention be extended. He stated, inter alia, that it was necessary to carry out a range of investigation measures in order to establish the identity of other persons involved in the kidnapping of Sh. and to ascertain the applicant’s participation in that crime, to finalise the preparation of the charges and to enable the applicant to examine the materials of the case file. The requests contained the circumstances of the crimes, as established by the investigation, and the description of evidence collected by the investigation. On 26 October 2000 the prosecutor of the north-east administrative circuit of Moscow approved the order of 23 October 2000 and extended the term of the applicant’s pre-trial detention until 24 November 2000. The investigator’s order of 1 November 2000 was supported by the prosecutor of the north-east administrative circuit of Moscow and the prosecutor of Moscow and was approved, on 8 November 2000, by a deputy prosecutor general, who extended the term of the applicant’s pre-trial detention until 24 February 2001.
11. The applicant’s advocate challenged the detention as unlawful and unjustified. By a decision of 28 November 2000 a judge of the Tverskoy District Court of Moscow dismissed the complaint. The judge found that the nature, seriousness and circumstances of the offences of which the applicant stood accused and their danger to the public warranted the detention orders. The applicant did not appeal.
12. On 30 January 2001 the investigator ordered a further extension of the applicant’s detention. The order reflected the state of investigation in the case against the applicant and seven other persons including what had been done since the last extension of the applicant’s detention. Thus, one more accomplice in the crime against F. had been identified and arrested; evidence of participation by several other individuals in the crime against T. had been examined; the defendants had examined expert reports; and more documentary evidence had been collected. The investigator submitted that it was necessary to finalise the charges against the applicant and for him to examine the voluminous case file, which would require additional time. On the basis of those considerations and having regard to the seriousness of the offences of which the applicant stood accused, the investigator ordered the applicant’s detention to be extended until 24 May 2001. The prosecutor of the north-east administrative circuit of Moscow and the Moscow prosecutor supported the order and on 14 February 2001 a deputy prosecutor general approved it.
13. On a further request by the investigator, approved by the regional and city prosecutor, a deputy prosecutor general of the Russian Federation extended, on 10 May 2001, the applicant’s pre-trial detention further, until 24 August 2001, on the grounds that the applicant was liable to abscond, resume his criminal activity and obstruct the investigation and in view of the gravity of the offences of which the applicant stood accused and the need for him to examine the case file.
14. On 10 July 2001, after the investigation in the case had been completed and the indictment approved, the case against the applicant and his co-defendants was transferred to the Moscow City Court for trial.
15. By a decision of a judge of the Moscow City Court of 31 July 2001 the hearing was set down for 14 August 2001 and an order was made for the applicant’s continued detention. The applicant did not appeal against the decision.
16. Between 14 August and 22 October 2001 the hearing was adjourned for reasons attributable to the applicant’s co-defendants.
17. The trial commenced on 22 October 2001.
18. On 26 November 2001 the lawyer of one of the applicant’s codefendants, Mr Grachev, lodged an application seeking an order for his client to be made the subject of an outpatient psychiatric examination. The application was supported by all the other defendants and their lawyers. By a decision of 27 November 2001 the court granted the application and adjourned the hearing, first until 3 December and then until 7 December 2001.
19. On the latter date, following a further application by Mr Grachev’s lawyer, supported by all the other defendants, the court ordered that Mr Grachev be made the subject of an inpatient psychiatric examination with a view to determining whether he could be held responsible for the offences of which he stood accused. It also adjourned the hearing until the experts’ report was available and ordered that the applicant should remain in custody.
20. The experts’ report on Mr Grachev’s condition was issued on 4 February 2002 and two days later Mr Grachev was brought back to his detention facility, of which the court was informed.
21. The trial recommenced on 3 April 2002 and was then adjourned until 13 May 2002, owing to the illness of one of the defendants and the need to summon witnesses. The hearing was held on 13, 14, 15, 17 and 20 May 2002.
22. On 23 May 2002 the public prosecutor lodged an application, based on expert opinion, seeking an order for Mr Grachev to receive compulsory inpatient psychiatric treatment and requesting the postponement of the proceedings in consequence. On 24 May 2002 the court granted the prosecutor’s request and ordered that Mr Grachev undergo compulsory inpatient psychiatric treatment until his condition improved. The court further ruled that the examination of the case against the other defendants, separately from Mr Grachev’s case, would undermine the thoroughness and objectivity of the trial. The court therefore adjourned examination of the case until Mr Grachev’s health condition had improved. The court stated that it took into account Mr Grachev’s diagnosis, which did not require lengthy inpatient treatment for him.
23. Submitting no objections to that decision, the applicant however requested to be released, subject to an undertaking not to leave his place of residence, referring to the uncertainty as to the duration of Mr Grachev’s treatment, his own lack of previous convictions, his permanent place of residence in Moscow, the fact that he had a wife and small child dependent upon him for support and the fact that his state of health required regular examinations by specialists of a kind not available at the detention facility. In a decision of 24 May 2002 the Moscow City Court refused the request for release made by the applicant and his two co-defendants on the ground of the seriousness of the offences of which they stood accused.
24. The applicant’s lawyers lodged an appeal against this decision, requesting that the applicant be released from custody and instead, as a preventive measure, be required to give an undertaking not to leave his place of residence. They pointed once again to the uncertainty as to the duration of Mr Grachev’s treatment, during which time the case would lie dormant, and to the length of the applicant’s pre-trial detention, which had begun in August 2000.
25. Mr Grachev’s lawyer also lodged an appeal against the decision of 24 May 2002. Relying on Articles 5 and 6 of the Convention, he complained that the unlimited extension of the pre-trial detention of his client and the other defendants in the case, including the applicant, constituted an unlawful and excessive restriction of their rights, which completely disregarded their right to liberty. In practice, the decision of 24 May 2002 anticipated, by means of pre-trial detention, their future conviction and punishment, in breach of the principle of presumption of innocence. The lawyer also argued that the order extending the defendants’ pre-trial detention for an indefinite period – until the as yet unknown date of Mr Grachev’s recovery – exceeded permissible restrictions on human rights and freedoms.
26. Between 2 and 25 July 2002 the appeals were not examined as one of the defence lawyers was on annual leave. On 30 July 2002 the Supreme Court of the Russian Federation dismissed both appeals and upheld the decision. It stated that the lower court had taken into account the experts’ opinion of the short-term character of Mr Grachev’s disease and ordered his compulsory treatment in accordance with the law, which provided that such treatment could be ordered if a person’s mental state posed a danger to that person and others and required permanent and intensive observation. The Supreme Court held that the reasons given in support of the request for the applicant’s release could not be considered cogent as the applicant stood accused of serious crimes.
27. On 19 August 2002, after the case file had been returned to the trial court, the hearing was set down for 2 September, and then adjourned to 10 September 2002 owing to the failure of the defence lawyers to appear.
28. On 10 September 2002 the trial court, having heard evidence from the defence, who had requested the release of the applicant and his two codefendants and substitution of the detention measure with another preventive measure not involving deprivation of liberty, granted the prosecutor’s request and extended the pre-trial detention of the applicant and his co-defendants until 1 October 2002. The court gave as reasons for its decision the fact that the applicant and his co-defendants had been charged with a particularly serious offence (conspiracy to murder by an organised group with aggravated circumstances) and that there were no grounds for annulling or altering the preventive measure chosen. By a decision of 30 September 2002, at the prosecutor’s request, a further extension in respect of the same persons was ordered until 1 January 2003, on the same ground. The court further referred to a decision of a medical committee of 20 September 2002 to terminate Mr Grachev’s compulsory treatment. The applicant did not appeal against these decisions.
29. On 30 December 2002 the trial resumed. On the same day the court, at the prosecutor’s request, ordered Mr Grachev to be made the subject of an inpatient psychiatric expert examination with a view to determining whether he could be held responsible for the offences of which he stood accused, and extended the pre-trial detention of the applicant and three other defendants until 1 April 2003 on the ground of the seriousness of the offences of which they stood accused.
30. Mr Grachev’s psychiatric expert examination was carried out on 27 February 2003.
31. On 10 April 2003 the Moscow City Court ordered that the hearing in the case be held on 14 April 2003. On that date it ordered that the pre-trial detention of the applicant and three other defendants be extended from 1 April 2003 until 1 July 2003 inclusive, on the ground that they were accused of particularly serious offences and were liable to abscond and obstructir respective personalities. The court stated in its decision that it had had no opportunity to discuss the question of the preventive measure in respect of the applicant and the other defendants, whose pre-trial detention had previously been extended until 1 April 2003. The court noted that the case file had been kept throughout this period at the expert institution which had carried out Mr Grachev’s psychiatric examination.
32. Between 14 April and 6 May and on 9 June 2003 the hearing was adjourned for reasons imputable to the applicant’s co-defendants. The hearing in the case ended on 18 June 2003 and the court started its deliberations.
33. On 27 June 2003 the Moscow City Court delivered a judgment in the case against the applicant and seven other defendants. The applicant was convicted of attempted kidnapping as part of an organised group, inciting malfeasance in public office and aiding and abetting an assault on a State official. The prosecutor dropped some other charges against him, including conspiracy to murder by an organised group with aggravated circumstances. The applicant was acquitted on the remaining charges. He was sentenced to four years’ imprisonment. The period of his pre-trial detention commencing on 28 August 2000 was counted towards the term of his sentence.
34. No appeal was lodged against the judgment, which came into effect on 15 July 2003.
35. On 15 October 2003 the Tverskoy District Court of Moscow ordered the applicant’s early conditional release.
36. Before 1 July 2002 preventive measures in criminal proceedings were governed by the Code of Criminal Procedure of the RSFSR of 1960. For its relevant provisions see the case of Kalashnikov v. Russia (no. 47095/99, § 89, ECHR 2002VI).
37. Since 1 July 2002 preventive measures in criminal proceedings have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001). Its relevant provisions are summarised in the case of Lind v. Russia (no. 25664/05, §§ 47-52, 6 December 2007).
VIOLATED_ARTICLES: 5
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-72225
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SCHOFIELD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr John Schofield, is a British national who was born in 1970 and lives in Preston, Lancashire. He is represented before the Court by Matthew Gold & Company, a firm of solicitors based in London.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was, at the material time, a lance corporal (a non-commissioned officer) in the British army.
On 16 May 2000 he was convicted by a General Court Martial (“GCM”) of two offences of rape of a junior female army officer (a Lieutenant). The applicant was sentenced to nine years’ imprisonment and dismissed with disgrace from the service. The GCM comprised four officers (not below the rank of Captain), a permanent president and a judge advocate. The Reviewing Authority did not alter the GCM’s finding or sentence.
The appeal to the Courts-Martial Appeal Court (“CMAC”) was dismissed on 30 July 2001. The applicant had argued that trial by court-martial comprised exclusively of officers violated the impartiality guarantee of Article 6 of the Convention where the complainant was an officer, the accused was a soldier from the ranks and the issues in the case turned on the credibility of the evidence of those individuals. The CMAC noted that:
“We have already referred to the fact that the members of the court swear a judicial oath for each case they are to try. The following passage formed part of the judge advocate’s summing-up ...:
“What is required of you at this stage is cold, clinical dissection of the evidence. You are a panel of five commissioned officers, trying the factual issues in this case. The complainant... is a commissioned officer. It would, of course, be entirely wrong for you to prefer the evidence of [the complainant] because she is a commissioned officer as against the evidence of the accused because he is a non-commissioned officer. That would be to show partiality and I remind you again of the oath you took at the outset of this case, to try this case without partiality, favour or affection. Your commonsense will no doubt tell you that commissioned officers do not always tell the truth any more than non-commissioned officers do not always tell the truth. It may be, I know not, that you were unimpressed with [the complainant’s] career to date. It’s not been without its problems. She was short-toured from Bosnia and I suspect you will conclude that on occasions she drank rather more than was good for her. These are factors about her that you are entitled to consider, but again it would be wrong to say ... that simply because of those problems in her career to date, she is not worthy of belief. Similarly with the accused, bear in mind all you know about him, the fact that he is a non-commissioned officer is one of the things you know about him. You also know about his career to date, his achievements and what other people think of him and his qualities. Weigh that in the balance when deciding the weight that you feel is appropriate to attach to his evidence.”
These directions were clear, robust, and balanced. The court can have been left in no possible doubt but that it was their duty to assess the evidence free of the least influence exerted by the protagonists’ respective ranks. In our judgment no apparent bias ... is shown, and there was no violation of Article 6.”
In its judgment of that date the CMAC also refused to certify a point of law of public importance to the House of Lords concerning the applicant’s ground of appeal to the CMAC.
The Armed Forces Act 1996 (the “1996 Act”) came into effect on 1 April 1997, amending the Army Act 1955 (the “1955 Act”). The relevant domestic law and practice applicable to air-force courts-martial following the entry into force of the 1996 Act is set out in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-77, ECHR 2003XII). The relevant regulatory framework governing post-1996 Act army courts-martial is the same in all material respects (the Cooper judgment, at § 107).
At the relevant time, a GCM was required to consist of a permanent president, not less than four serving military officers of at least three years’ military experience and a judge advocate (section 84D of the 1955 Act, prior to amendment by the 2001 Act).
The Armed Forces Act 2001 (the “2001 Act”) has since inserted a new section 84D into the 1955 Act. The new section provides, inter alia, that membership of a GCM may include two (non-commissioned) warrant officers where the accused is a person of a rank below that of the warrant officers concerned. In giving evidence on 6 March 2001 to the Select Committee on this draft legislation, the Chief of the Defence Staff stated:
“There are some areas where [the Bill] will improve the way we actually conduct our discipline. The idea, for example, of having warrant officers able to sit on courts-martial gives us the opportunity to use the experience of these excellent people within the service, and I am sure that will be perceived as a good thing, which in turn must reflect on the overall discipline.”