KOTURENKA v. LITHUANIA
Inadmissible
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković
1. The applicant, Mr Vladas Koturenka, is a Lithuanian national, who was born in 1971 and lives in Trakai. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant and his wife got married in 1999 and subsequently had two sons. In 2004 the applicant’s wife moved to Germany to pursue doctoral studies and, with the applicant’s consent, she took the children with her. A year later the applicant’s wife initiated divorce proceedings before the Lithuanian courts. 4. On 25 May 2007 the Vilnius City First District Court granted the divorce. The court found that the marriage had broken down due to the applicant’s fault – it was established that he had regularly gambled, using his wife’s and her relatives’ money for that purpose. 5. During the court proceedings, the applicant agreed that the custody of the two children be awarded to his ex-wife. He subsequently changed his position, first requesting custody of the older son and later of the both children. However, the court held that the interests of the children were best served by awarding custody to their mother. It found that the children were very attached to their mother and to each other, and that the applicant had not maintained regular contact with them since their move to Germany. 6. The applicant was ordered to pay maintenance to the two children. The court held that the amount of maintenance had to be calculated according to German law and found this amount to be 247 euros (EUR) per month for each child. The court then noted that the applicant did not have sufficient income to provide this amount: during the court proceedings the applicant himself stated that he was only able to afford 200 Lithuanian litai (LTL, approximately EUR 58) per month for each child. However, the court also noted that the applicant owned an apartment in Vilnius, the market value of which was estimated to be LTL 205,000 (EUR 59,400). Stressing that the interests of children took priority over the interests of their parents, the court awarded the apartment as a form of maintenance jointly to the two children. 7. On 4 October 2007 the Vilnius Regional Court upheld the decision of the lower court with certain amendments. The court held that the maintenance needs of the children had to be determined in accordance with Lithuanian (and not German) law. The court re-evaluated the amount of maintenance on the basis of the documents submitted by the applicant’s ex-wife and accepted her claim that LTL 2,000 (EUR 580) per month for each child would be appropriate. The court then estimated that the applicant’s apartment, sold at its market price (see paragraph 6 above), could provide each child with approximately LTL 600 (EUR 174) per month until they turned eighteen. It also concluded that the applicant’s ex-wife nonetheless had to bear a significantly larger financial burden in the upbringing of their children. Therefore, the court held that awarding the applicant’s apartment for the maintenance of the children was proportionate and justified. 8. The applicant lodged a cassation appeal with the Supreme Court arguing that the decision to award his apartment as a form of maintenance was unjustified. However, on 21 November 2007 the Supreme Court refused to examine the appeal on the ground that it raised no important legal questions. The applicant then lodged a new cassation appeal, but on 8 January 2008 the Supreme Court refused to examine it (on the same grounds). 9. Article 38 of the Constitution of the Republic of Lithuania provides that parents have the obligation to support their children until they come of age. 10. Article 3.3 of the Civil Code provides that the legal regulation of family relationships shall be based on, inter alia, the priority of protecting and safeguarding the rights and interests of children. 11. Article 3.192 of the Civil Code reads as follows: “1. Parents shall be obliged to maintain their children until their majority. The procedure and form of maintenance shall be determined by the mutual agreement of the parents. 2. The amount of maintenance must be commensurate with the needs of the children and the financial situation of their parents; it must ensure the conditions necessary for the children’s development. 3. Both parents must provide maintenance to their children until their majority in accordance with their financial situation.” 12. Article 3.196 § 1 of the Civil Code reads as follows: “1. The court may issue a maintenance order obliging the parents (one of the parents) who fail in their duty to maintain their children to provide maintenance to their children in the following ways: 1) regular monthly payments: 2) a defined lump sum; 3) award of a particular property.” 13. Article 3.198 § 1 of the Civil Code provides that when making a maintenance order in respect of two or more children, the court shall determine an amount sufficient to meet at least the minimal needs of all the children. 14. Article 668 § 1 of the Code of Civil Procedure provides that judgments cannot be enforced against property which is essential for the debtor’s subsistence, occupation or studies. 15. On 23 June 2005 the Senate of the Supreme Court issued decision no. 54 “On the application in the case-law of laws regulating parents’ duty to financially maintain their children before the age of majority”, which was aimed at harmonising the case-law of the lower courts. The relevant parts of the decision read as follows: “10. Parents’ financial situation shall be determined taking into account all types of income: wages; other employment-related income; royalties; pensions; scholarships and social benefits; income from commercial and economic activity (rent, dividends and others); funds in banks and other credit institutions; movable (cars, valuable portable items, jewellery) and immovable (houses, flats, other buildings, land, forests, and so forth) property; securities (equities, bonds); legal entities (sole proprietorships, and so on) and their property. In determining the financial situation of parents, other statutory dependants are also to be taken into account. 11. When determining the proportionality between the needs of the child and the parents’ financial situation, the court should take into consideration the fact that the amount of maintenance must be commensurate with the reasonable needs of the child and the parents’ financial situation (Article 3.192 § 2 of the Civil Code) ... Maintenance must also be imposed on a father (or mother) who receives only the minimum wage, a State pension or other minimum income. The parents’ severe financial situation is an important criterion for calculating the amount of maintenance but it cannot be grounds for exempting the father (or mother) from the obligation to provide maintenance for their children ... 12. The court may award maintenance in the following forms: regular monthly payments; a defined sum of money; an award of a particular property to a child (Article 3.196 § 1 of the Civil Code). The form of maintenance chosen must allow the maximum satisfaction of the needs of the child, taking into account the interests of the child and the financial situation of the parents. The court may choose on its own initiative the form of maintenance which satisfies the child’s best interests (Article 376 § 3 of the Code of Civil Procedure). The selection criteria for the form of maintenance are the following: the child’s needs, age and health status; the parents’ financial situation; the structure of the parents’ property; their income level and income periodicity; and the father’s (and mother’s) ability to properly manage the assets and other aspects relating to property management. In selecting the form of maintenance, the court must take into account the fact that maintenance by its nature has the purpose of satisfying the everyday needs of children before their majority: the child’s food, clothing, housing, education, health and development. Maintenance in the form of periodic payments paid monthly guarantees a fixed amount for the child’s maintenance every month. Such a form of maintenance should be applied where the child’s father (or mother) has a permanent income (earnings, pensions, allowances, and so forth). A defined sum of money as maintenance may be determined where this is allowed by the available funds of the child’s father (or mother) who is liable for maintenance. The full amount of maintenance in a specific, one-off payment of money shall be determined by multiplying the amount of maintenance per month by the number of months until the child’s majority. Maintenance in the form of awarding ownership of the father’s (or mother’s) specific property to a child may be applied where the father (or mother) has a property and by using it or realising [its value], the income for the child’s maintenance may be received or the child’s needs may be met. A court deciding to award maintenance in this form must take into account the type of the property to be awarded, the father’s (or mother’s) ability to manage the property, future costs for the property’s maintenance, liquidity of the property, and so forth. The value of the property shall be determined on the basis of the value determined by market prices at the time the decision is rendered (Articles 3.4, 3.119 of the Civil Code) ...” 16. In case no. 3K-3-303/2008 of 26 May 2008, the Supreme Court held as follows: “The purpose of maintenance is to fulfil the child’s daily needs, and it is constantly necessary, every day, and not some time in the future when the parents will be able or willing to provide for those needs. It is therefore important to secure stability of maintenance ... The parent who lives with the minor child also assumes the daily care of the child which is normally not compensated for by awarding maintenance [from the other parent]. Meanwhile both parents are responsible for ensuring a safe environment and proper conditions for the child to grow and develop, for providing support in the child’s education and realisation of his or her talents and interests. The Supreme Court has established in its case-law that inadequate compliance or non-compliance with parental duties can be justified only in exceptional circumstances which are outside the parents’ control; therefore, parents ought to evaluate their financial situation and readiness to take care of a child in advance; in failing to evaluate their readiness to raise a child, develop his personality and provide suitable conditions for his development, parents consciously assume an increased social risk and its consequences (ruling of the Supreme Court in civil case no. 3K-3-259/2004 of 26 April 2004). Thus, when assessing the party’s financial status, the court evaluates not only his or her existing possessions and income, but also the action that he or she has taken to ensure income commensurate with his or her age and professional capabilities, which could be used to provide maintenance for his or her children ...”