CASE OF SCHMIDT v. LATVIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
6. The applicant was born in 1938 and lives in Hamburg. 7. On 19 March 1970 the applicant married A.S. From 1980 the couple lived in Hamburg and as of 1986 they resided in a rented apartment. In 1992 they moved to Riga but maintained their place of residence in Hamburg. In Riga the couple acquired an apartment, which was the applicant’s registered address in Latvia at that time. In 1999 or 2000 the applicant moved back to Hamburg and stayed in the couple’s previous place of residence. The couple maintained contact by telephone and post. On 15 December 2000 they both signed a paper which stated that “with view of regulating their separated life, [the applicant and A.S.] conclude the following agreement”. There is no information on the content of that document. 8. According to the documents submitted by the applicant, her residence permit in Latvia expired on 15 January 2002. The Government maintained that the correct date had been 14 May 2003. 9. On 5 December 2003 A.S. brought divorce proceedings concerning his marriage to the applicant before the Riga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa). In his application A.S. stated that the last time he had seen his spouse had been in 2000 and that their marriage was to all intents and purposes dissolved. He also submitted that prior to lodging this claim he had talked to the applicant over the telephone and had informed her of his intention to bring divorce proceedings. He had invited her to submit in writing any pecuniary claims she might have in relation to their common property; however, the applicant had refused to discuss this issue. A.S. also alleged that the applicant’s last known place of residence had been their apartment in Riga and that, owing to their disagreements, he could not find out where the court summons should be sent to. Accordingly, A.S. suggested that the applicant should be summoned to the hearing by a notice in the Official Gazette. 10. On 13 January 2004 the Riga City Ziemeļu District Court summoned the applicant to a divorce hearing by sending summons to her previous place of residence in Riga – the apartment in which she used to live with her husband A.S. Upon receiving the information from post authorities that the applicant did not live at the above address, on 27 January 2004 the applicant was summoned to the hearing scheduled for 1 March 2004 with a notice in the Official Gazette. Said hearing was postponed at A.S.’s legal representative’s request in order to present additional evidence. With a notice in the Official Gazette of 3 March 2004 the applicant was summoned to a divorce hearing scheduled for 6 April 2004. 11. At the hearing of 6 April 2004 the Riga City Ziemeļu District Court established that the applicant had been summoned to the hearing in accordance with the requirements of the Civil Procedure Law. Therefore, it ruled that the adjudication of the case could take place in her absence. Owing to his poor health, A.S. was represented by a lawyer who stated, inter alia, that A.S.’s and the applicant’s children lived in Greece. After hearing testimony from two witnesses, who stated that they had not seen the applicant since 2000, the court granted the divorce. No appeal was brought against this judgment and it came into force on 27 April 2004. 12. On 29 April 2004 A.S. married A.A. – one of the witnesses who had testified in the divorce proceedings. The following day A.S. passed away. 13. According to the applicant, she learned about the judgment dissolving their marriage when she came to Riga for A.S.’s funeral. The Government did not dispute this fact. 14. Following a request by the applicant of 26 May 2004 the Justice Authority of the Free and Hanseatic City of Hamburg (Freie und Hansestadt Hamburg Justizbehörde) on 27 July 2004 delivered a declaratory decision (Feststellungsbescheid) stating that the requirements for legal recognition of the judgment of the Riga City Ziemeļu District Court had not been met, as the divorced spouse had not been afforded an opportunity to present her case in the divorce proceedings. On the basis of the information before it, the Justice Authority established that A.S. had been aware of the applicant’s address in Hamburg. Notably, A.S. had maintained contact with this address in general correspondence and in correspondence concerning the pension he had been receiving from Germany and the Netherlands. 15. Following a prior request by the applicant, on 8 November 2004, the President of the Supreme Court submitted an application for supervisory review (protests) to the Senate of the Supreme Court asking for the judgment of the Riga City Ziemeļu District Court to be set aside and for the case to be adjudicated anew. He argued that the first-instance court had overlooked some evidence concerning the applicant’s domicile and had erred in its application of the procedural rules when summoning the applicant to the hearings. In accordance with section 59(2) of the Civil Procedure Law, A.S. could have placed a notice about the proceedings in a newspaper in Hamburg, where the applicant resided. Besides, as Hamburg had been the applicant’s registered place of residence, she should have been summoned to the proceedings via the Ministry of Foreign Affairs. The President of the Supreme Court emphasised that owing to these violations the Justice Authority of the Free and Hanseatic City of Hamburg had refused to recognise said judgment. Lastly, the application for supervisory review stated that the applicant’s rights guaranteed under Article 6 § 1 of the Convention had been violated. 16. On 16 March 2005 the Senate of the Supreme Court, sitting in an extended composition, with a final judgment dismissed the supervisory review application and upheld the judgment of the Riga City Ziemeļu District Court. The Senate of the Supreme Court concluded that, since A.S.’s claim had not contained a reference to the applicant’s address and since the Riga City Ziemeļu District Court had therefore been unaware of her whereabouts, its actions had been compatible with the procedural requirements of the Civil Procedure Law. Section 59(2) of the Civil Procedure Law imposed no obligation on the court; it only gave the plaintiff a right to publish the court’s summonses in other newspapers at his or her own expense. The Senate of the Supreme Court also stated that in the circumstances of the present case a reference to Article 6 of the Convention could not serve as grounds for setting aside the judgment of the firstinstance court. It reasoned: “The aim of the application for supervisory review – a fresh adjudication of the case permitting the defendant to exercise her procedural rights – can no longer be achieved because the plaintiff, [A.S.], passed away on 30 April 2004, a fact which excludes any further proceedings. Besides, one should bear in mind that following his divorce form Lydia Heide Friedel Schmidt [A.S.] concluded a new marriage, which, according to section 64(2) of the Civil Law, could not be declared null and void, irrespective of whether the judgment of 6 April 2004 of the Riga City Ziemeļu District Court would be quashed.” 17. The parties differ on whether A.S. had been aware of the applicant’s place of residence and on whether the applicant had been aware of the divorce proceedings. In relation to the first issue the applicant maintained that she had been residing in the couple’s previous place of residence in Hamburg and that the landline telephone there had been used for their telephone conversations. Furthermore, A.S.’s retirement pension and health insurance had been transferred to their shared bank account, as well as to their place of residence in Hamburg. The Government, in turn, relied on the information A.S. had submitted to the Riga City Ziemeļu District Court and also emphasised that no other evidence had been at the court’s disposal. 18. With regard to the applicant’s knowledge of the divorce proceedings the Government pointed to A.A.’s submissions before the Senate of the Supreme Court. In particular, A.A. had alleged that the applicant had been informed of the divorce proceedings over the telephone. The applicant maintained that even though she had been aware of A.S.’s desire to dissolve their marriage, she had only learned of the divorce proceedings following the death of A.S. 19. On 3 November 2005 the applicant brought civil proceedings against A.A. claiming one half of the undivided share of the property that A.S. had acquired during their marriage. She argued that it had been the spouses’ common property. On 30 November 2006 the Riga Regional Court granted her claim in full. A.A. appealed against this judgment. The Court has no further information about these proceedings.