CEDH · CASELAW;COMMUNICATEDCASES;FRA;FRE — 13 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 13 September 2017   FOURTH SECTION Application no. 231/15 Irina KOŽEMIAKINA against Lithuania lodged on 9 December 2014 STATEMENT OF FACTS The applicant, Ms Irina Kožemiakina, is a Lithuanian national who was born in 1969 and lives in Klaipėda. She is represented before the Court by Ms S. Baracevičienė, a lawyer practising in Klaipėda. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Criminal proceedings against V.O. On 27 November 2012 the Klaipėda District Court convicted V.O. of causing a minor health impairment and a breach of public order under Articles   138 § 1 and 284 § 1 of the Criminal Code. The court found that on 19   February 2012 V.O., acting together with the applicant’s then fifteen ‑ year-old son, A.K., had assaulted V.M. in the stairwell of his residential building. V.O. denied his guilt and claimed that he and A.K. had been defending themselves against an attack by V.M. The applicant’s son, A.K., was questioned as a witness and also claimed that he and V.O. had acted in self-defence. However, the court found V.O. guilty. It held that V.O. had committed the criminal offence in question, acting together with a minor below the age of criminal responsibility (A.K.), that he had encouraged A.K. to assault V.M. and that he had not stopped him from doing so, so he had to assume all the consequences of the criminal activity in question. V.O. was sentenced to one year of restriction of liberty and ordered to study or work during that period. The court allowed in part a civil claim lodged by V.M. for damages in respect of the assault, and ordered V.O. to pay him 240   Lithuanian litai (LTL   –   approximately 70   euros (EUR)) in pecuniary damages and LTL   2,000 (approximately EUR 580) in non-pecuniary damages. On 21 March 2013 the Klaipėda Regional Court upheld V.O.’s conviction and increased the award of non-pecuniary damages to LTL   5,000 (approximately EUR 1,450). The applicant did not have any status in those proceedings and was not called to participate in any court hearings. 2.     Civil proceedings against the applicant and her son A.K. After the conclusion of the criminal proceedings, V.M. lodged a civil claim against the applicant and her son. V.M. submitted that A.K.’s violent actions, which had been established in the previous criminal proceedings, had impaired his health and caused him physical and psychological suffering. He claimed LTL 20,000 (approximately EUR   5,800) in non ‑ pecuniary damages jointly from the applicant and A.K. The applicant and her son contested the claim. They argued that V.M. could not have relied on the courts’ findings in the criminal proceedings against V.O. because A.K. had not been convicted in those proceedings and had only had the status of a witness. They also argued that V.M. should have submitted his claim not only against A.K.’s mother (the applicant) but also against A.K.’s father, who they argued was equally responsible for the actions of his minor son. On 28 November 2013 the Klaipėda District Court partly allowed V.M.’s claim. The court found that it had been established that V.O. and A.K. had assaulted and injured V.M. It stated: “When questioned during the pre-trial investigation, [A.K.] confessed that he had hit the victim and had pushed him down the stairs, stating that he had done so in self ‑ defence ... As a result of [A.K.’s] actions, the victim had suffered harm. These facts were established in the course of criminal proceedings, during the pre-trial investigation (Article 182 § 5 of the Code of Civil Procedure); the defendants have not provided any facts that could deny [A.K.’s] guilt, so there is no need to prove these established facts with regard to the defendant’s [A.K.’s] unlawful actions and guilt ( šių nustatytų faktų dėl atsakovo [A.K.] neteisėtų veiksmų ir kaltės nereikia įrodinėti ).” The court further held that there had been a causal link between A.K.’s actions and the harm suffered by V.M., so there were sufficient grounds for awarding V.M. damages. It dismissed the defendants’ argument that A.K.’s father should have been one of the defendants, taking note of V.M.’s argument that A.K.’s father lived separately from his family and that V.M. did not have any information about him, and stating that the civil claimant had had the freedom to choose the defendants against whom he wished to submit his claim. The court, having regard to A.K.’s young age and the applicant’s difficult financial situation, allowed V.M.’s civil claim in part and awarded him LTL   2,000 (approximately EUR 580) in non-pecuniary damages and LTL   1,500 (approximately EUR 435) in legal costs. The court ordered that the above amounts were to be paid by A.K., and that if he did not have sufficient assets they were to be paid by the applicant. The applicant’s obligation to pay those amounts would end when A.K. turned eighteen years old or when he obtained sufficient assets (see the “Relevant domestic law and practice” section below). The applicant and A.K. appealed against that decision, raising essentially the same arguments as in their initial reply to the civil claim. V.M. also submitted an appeal in which he asked for his claim to be allowed in full and to be awarded LTL 20,000 (approximately EUR 5,800) in non ‑ pecuniary damages. On 28 April 2014 the Klaipėda Regional Court dismissed the appeal lodged by the applicant and A.K. and upheld the findings of the first ‑ instance court. In particular, the court stated: “The defendants in their appeal submitted that the judgment [in the criminal proceedings against V.O.] had not assessed [A.K.’s] guilt in respect of the criminal offence and the court could thus not have relied on the circumstances established in the judgment of 27 November 2012. This argument cannot be accepted. The Klaipėda District Court’s judgment of 27 November 2012 and the Klaipėda Regional Court’s judgment of 21 March 2013 established that unlawful actions had been committed by the defendant [A.K.] as well. The first-instance court correctly stated that the circumstances which had been established in the course of the criminal proceedings could be relied on and that there was no need to prove them (Article   182 § 3 of the Code of Civil Procedure). The [court] notes that the fact that the defendant has not been prosecuted in criminal proceedings does not preclude his civil liability ...” The Klaipėda Regional Court partly upheld the appeal submitted by V.M. and increased the amount of non-pecuniary damages awarded to him to LTL 8,000 (approximately EUR 2,320). The applicant and A.K. were also ordered to pay the legal expenses incurred by V.M. at the appellate stage, amounting to LTL 300 (approximately EUR 87). Subsequently the applicant and A.K. submitted two appeals on points of law, raising essentially the same arguments as before. On 29 May 2014 and 31   July 2014 the Supreme Court refused to examine their appeals as raising no important legal issues. B.     Relevant domestic law and practice 1.     Criminal Code Article 138 § 1 of the Criminal Code provides: Article 138. Minor health impairment “1.     A person who has injured another person or caused him or her to be ill, if as a result the victim has lost a small part of his or her professional or general working capacity or was ill for a long time but did not suffer the consequences set forth in Article 135 § 1 of this Code, shall be punished by restriction of liberty or by detention or by imprisonment for a term of up to three years.” At the material time, Article 284 § 1 provided: Article 284. Disturbing public order “1.     A person who, in a public place, by aggressive conduct, threats, taunting or acts of vandalism showed disrespect to other persons or to [his or her] surroundings and thereby disturbed the public peace or order shall be punished by community service or by a fine or by restriction of liberty or by detention or by imprisonment for a term of up to two years.” Article 13 § 1 establishes the age of criminal responsibility at sixteen years, except for certain particularly serious crimes listed in Article 13 § 2 (such as murder, rape, severe health impairment, and others), in respect of which the age of criminal responsibility is fourteen years. 2.     Code of Criminal Procedure Article 255 § 1 of the Code of Criminal Procedure provides that a court shall examine a case only in respect of those accused and those criminal acts which have been referred to it for examination. In its review of the domestic courts’ case-law, issued on 25   June 2009, the Supreme Court concluded that the requirement set forth in Article   255 §   1 of the Code of Criminal Procedure for a court to examine a criminal case only in respect of those accused who had been referred to it for examination did not prohibit that court from examining whether acts of third parties complied with the law to the extent necessary for determining the criminal responsibility of the accused. However, a judgment could not include any phrases which established third parties’ guilt of criminal acts, except for individuals who had already been convicted or exempted from criminal responsibility. 3.     Civil Code Article 6.276 § 1 of the Civil Code provides that a minor between fourteen and eighteen years of age shall be held liable for damage caused by his or her actions, in line with the general rules provided by the Code. Article   6.276 § 2 provides that when such a minor does not have sufficient assets or income to provide compensation for the damage, then compensation for the corresponding part of the damage has to be provided by his or her parents or guardians, unless they prove that they were not at fault for the damage caused. Article 6.276 § 3 provides that the parents’ or guardians’ obligation to provide compensation for damage caused by a minor ends when he or she turns eighteen years old or if by that date he or she obtains sufficient assets or income with which to provide full compensation for the damage. Article 6.248 § 1 provides that civil liability arises only if a person is at fault, save for exceptions provided by law or contract. 4.     Code of Civil Procedure At the material time, Article 182 of the Code of Civil Procedure provided: “It is not necessary to prove the following circumstances: 1)     those which have been recognised by a court as generally known; 2)     those which have been established by a final court decision in another civil or administrative case concerning the same parties, except when the court decision creates legal consequences for other persons as well ... ; 3)     the consequences of a person’s criminal activity which have been established by a final court judgment in a criminal case ... ; 4)     legal presumptions which have not been refuted; 5)     those which are based on facts acknowledged by the parties (as set forth in Article   187 of this Code).” Article 185 § 1 provides that a court must assess all the evidence available in a case in accordance with its inner conviction, on the basis of a comprehensive and objective examination of the circumstances which have been examined during the proceedings, and in accordance with the law. Article   185 § 2 provides that no evidence has a predetermined effect, save for exceptions stipulated in the Code. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that the courts in the civil proceedings unfairly relied on the judgments in the criminal proceedings against V.O., in which her son A.K. had been a witness and she had not had any procedural status. The applicant also complains that she and her son were ordered to pay more in non ‑ pecuniary damages than V.O., the person who was convicted for assaulting V.M. QUESTION TO THE PARTIES Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see, mutatis mutandis , N.A. v. Norway , no.   27473/11, §§   46-51, 18   December 2014, and Carmel Saliba v. Malta , no.   24221/13, §   73, 29   November 2016)?