CASE OF GINEITIENE v. LITHUANIA
Remainder inadmissible;No violation of Art. 14+8;Pecuniary and non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1968 and lives in Vilnius. In 1990 the applicant married VG. 6. In 2000, the applicant became involved in the activities of the Ojas Meditation Centre, a Lithuanian branch of a new religious movement called Osho. 7. In 2001, she divorced her husband. The permanent place of residence of the applicant's two daughters, IG and AG, born in 1995 and 1996 respectively, was not determined and they stayed with the applicant and her former husband in Kaunas. 8. In July 2003, the applicant's former husband brought an action requesting that his home be fixed as the place of residence of his daughters. He alleged, inter alia, that the applicant's involvement in the Osho religious movement could have a negative influence on the children. 9. On 24 July 2003 the Kaunas District Child Rights Protection Agency, having visited the father's place of residence, concluded that the living conditions were suitable and, taking into consideration the wishes of AG and IG, suggested fixing their place of residence with the father. On 28 August 2003 the same Agency proposed to the District Court of Kaunas that it hear the views of the children. 10. By a ruling of 29 September 2003, the Kaunas District Court decided that, pending the proceedings, AG should reside with the applicant, and IG should stay with her father. 11. On 1 October 2003 the applicant and AG moved to Vilnius, settling in an apartment situated in the same building as the Ojas headquarters. The applicant was allowed to use that apartment free of charge. IG stayed with her father. 12. On 3 October 2003 the employees of the Vilnius City Child Rights Protection Agency (Vaiko teisių apsaugos tarnyba) visited the applicant's residence. They noted the applicant's explanation that she had two rooms for her use, one of them being reserved for AG. When the applicant was absent, a nanny would take care of her. The living conditions seemed suitable for a child. However, during the interview AG explained that she wanted to stay with her father, who took better care of her and did not leave her alone. She elaborated that her mother left her alone during the day and that she often felt scared. The Agency then suggested fixing AG's place of residence with her father. 13. On 9 December 2003 the employees of the Vilnius City Child Rights Protection Agency, having visited the applicant's place of residence in Vilnius, concluded that it was unsafe for AG to live there and that the applicant was not caring enough about AG's upbringing and education. They noted that the applicant's living space consisted of one room and that the kitchen was shared with other residents of the house. AG lived in that room with her mother, both of them sleeping in the same bed. The other room, which was supposed to be part of the applicant's living space, was apparently also used by other persons. At the time of the interview with AG, two teenage boys entered the room without asking for permission. According to AG, her mother did not take care of her; she did not have any friends and, during the day, was left alone. The girl had to cook for herself; she was not allowed to go to the adjoining yard and the building next to it, where her mother was meditating. The nanny would only come to take care of AG when the applicant left for a few days. AG expressed her wish to live in Kaunas with her father and sister IG. The Agency's workers also interviewed AG's kindergarten teachers. According to them, AG was often sad about not seeing her sister and father. AG would also be picked up from the kindergarten by some fifteen year old girl, but at the time of the interview she was going home on her own. The Agency's workers suggested to the applicant that she find another place to live where AG would feel safer. However, the applicant refused because she did not have to pay rent for the current flat, and it was close to her meditation centre. 14. On 26 March 2004 the employees of the Vilnius City Child Rights Protection Agency again interviewed AG, who repeated her wish to live with her father. The Agency also noted that AG had stressed that she had made the same statement before the court of first instance and to the psychologists. 15. From 25 June to 2 July 2004, AG was examined by a psychologist. Again, she expressed her wish to stay with her father and older sister. 16. On 13 April 2004 the Kaunas District Court granted the action in part, ruling that IG should live with the applicant's former husband, and AG should live with the applicant. The court noted that both parents were well educated and had sufficient salaries to provide for their daughters. In the course of the proceedings, both girls had been heard by the court as well as by a psychologist. They had both expressed their wish to stay with their father. However, the court agreed with one of the experts that AG (then 8 years old) was not mature enough to take a reasonable decision about her parental preferences. With respect to the applicant's affiliation to the meditation centre, the court noted: “The Ministry of Justice has refused to register [Ojas] as a religious community, suggesting that it should be registered as [a non governmental organisation]. There is no indication in the case file that the meditation centre has a negative influence on children or that it propagates certain intolerable views; nor is there any evidence that the [applicant's] children are involved in the activities of the centre. The court concludes that [the applicant's] active participation in the activities of the meditation centre does not have any negative impact on her children. In accordance with Article 26 § 2 of the Constitution, everyone is free to choose a religion or belief and ... to profess his religion, to perform religious practices, and to practise and teach his beliefs.” 17. On 16 July 2004 the Kaunas Regional Court amended the decision, ruling that both daughters should live with their father. The court considered that too little weight had been afforded by the lower court to the express wish of AG to live with her father. According to the appellate court, this had not complied with Article 12 of the United Nations Convention on the Rights of the Child or the relevant provisions of national law, which obliged the court to take into account a child's wishes irrespective of its age. The appellate court had regard to the expert's conclusion of 9 December 2003 that the environment in which the applicant lived was unsafe, whereas the applicant's husband was able to provide good living conditions for AG. The recommendation by the Kaunas District Child Rights Protection Agency to fix the place of residence of both daughters with the father was taken into account. The court also observed the girls' wish to stay together, and to be close to other family members (grandparents) and friends living in Kaunas. Certain instances of inadequate care were noted, namely, the applicant's failure on one occasion to arrange for AG's medical assistance or to ensure her attendance at school. Finally, the appellate court observed that the first-instance court had not assessed (nevertino) the material submitted to the Ministry of Justice characterising the Osho movement as controversial. Neither did the first-instance court give any credit to the fact that the movement had been unable to obtain registration as a religious community. 18. The applicant submitted a cassation appeal, alleging, inter alia, that the court's decision was discriminatory, and that it had failed to respect her family life. She requested that her youngest daughter, AG, live with her. 19. On 1 December 2004 the Supreme Court dismissed the applicant's cassation appeal. It emphasised that the rights of both parents in the education of their children were equal, regardless of their beliefs, convictions or views. The custody dispute was to be resolved taking into account the best interests of the children, in which context their wishes should be considered, regardless of their age. In assessing the significance of such wishes, the most important factor would be the children's ability to formulate, express and substantiate their views. 20. The Supreme Court established that AG had amply explained her preference to stay with her father during the entire proceedings, both in her submissions to the courts and during the interviews with the experts. She had stressed, in particular, that her mother had not taken adequate care of her, often leaving her alone and neglecting to cook meals. The girl had also expressed a preference for living in Kaunas, together with her sister and close to other relatives and friends. She had noted that her father spent more time with her and took better care of her. The Supreme Court emphasised that the experts had considered that the living conditions of the applicant were unsafe for children. 21. The Supreme Court further assessed the material conditions of accommodation offered by both parents. It was established that the applicant's husband was able to provide his daughters with a separate room in a private cottage in the countryside near Kaunas. 22. The Supreme Court also emphasised the importance for the two sisters to be brought up together, and underlined that close ties existed between them. 23. The applicant's allegations of discrimination were dismissed as unsubstantiated. In this respect, the Supreme Court noted: “The applicant's claim in her cassation appeal that the appellate court had breached the principle of non-discrimination, enshrined in Article 14 of the Convention as well as in [Lithuanian law], by wrongly assessing the evidence on the Ojas Meditation Centre and taking into account that the applicant belonged to it, is unfounded. When determining the place of residence of the two children, whose parents live separately, the Court of Appeal gave priority to the interests of the children, took into account their wishes, the ability and efforts of each parent to guarantee the basic rights of the children, and each parent's living conditions, that is to say, those conditions in which the children would have to live once their place of residence was decided. The decision of the appellate court did not contain any indication that the resolution of the dispute was influenced by the fact that the applicant was a member of [Osho/Ojas] ... The appellate court only noted that the first-instance court had not assessed all the evidence regarding the meditation centre. However, that does not presuppose that the appellate court considered the applicant's membership of the centre important in the resolution of the dispute. Had that been so, such a consideration would require an assessment of whether the prohibition of discrimination on grounds of religion was observed. In its judgments in the cases of Hoffmann v. Austria and Palau-Martinez v. France, the European Court of Human Rights ruled that the prohibition of discrimination on the basis of religion, enshrined in Articles 14 and 8 of the Convention, had not been respected in cases where the courts had attached decisive importance to the [applicant's] religious affiliation. However, when determining [the custody dispute], the appellate court did not attach significance to the fact that the applicant was a member of [Osho/Ojas].” 24. In an unrelated set of proceedings, the Ojas Meditation Centre requested a court order obliging the Ministry of Justice to register it as a religious community. The action was granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that Ojas propagated any controversial practices amongst its members. Ojas was registered as a religious community on 12 April 2005. 25. Article 23 of the Law on the Fundamentals of Protecting the Rights of the Child (Vaiko teisių apsaugos pagrindų įstatymas), in force at the material time, provided that disputes arising over a child's place of residence, in cases where the parents live separately, were to be resolved in court. It further stipulated that priority consideration had to be accorded to the interests and wishes of a child capable of expressing its own opinion as to which one of its parents it would wish to live with. 26. Article 3.174 of the Civil Code stipulates that, in the case of a dispute over a child's place of residence, the court is to take into consideration the wishes and interests of the child. The child's choice in the matter may be only disregarded if it is contrary to its best interests. Under Article 3.177 of the Code, when adjudicating disputes over children, the court must hear the child capable of expressing its views and ascertain its wishes. 27. On 21 June 2002 the Senate of the Judges of the Supreme Court adopted a ruling “On the application of laws in the case-law of the courts in determining the place of residence of minors when the parents are separated”. The ruling reads: “4. In deciding the dispute between separated parents over a child's place of residence, the court hearing the case must clarify and establish the following facts of legal importance: 1) the opportunities and efforts of each parent to ensure the implementation of the fundamental rights and duties of the child enshrined in legal provisions ...; 2) the conditions of the environment of each parent, namely, those conditions in which a child would live once its place of residence with one of the parents had been decided; 3) the wishes and views of the child. ... 6. (...) The court must also find out whether a child, over whose place of residence the dispute arose, has brothers or sisters .... The separation of brothers and sisters, especially in cases where the children have strong emotional attachments to each other and where they are fond of communicating and being together, would violate the interests of the children. ...” 28. Article 185 of the Code of Civil Procedure provides that a court shall make its own judgement on the probative value of evidence, based on the comprehensive and unbiased examination of that evidence in court. 29. On 3 July 1995 the Seimas of the Republic of Lithuania ratified the 1989 United Nations Convention on the Rights of the Child which then became an integral part of Lithuanian law. The convention provides, in so far as relevant in the present case, the following: “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”