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Rebecca Delaney
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ANCILLARY RELIEF: Svencioniene v Lithuania
Date:25 NOV 2008

(European Court of Human Rights; 25 November 2008)

At the first instance hearing of the wife's claim for financial compensation on divorce, the wife was awarded about 2,442 Euros. The husband appealed. The notice of the husband's appeal was not received by the wife, having been sent to an incorrect address. The husband was notified of and participated in the appeal proceedings; the appeal court allowed his appeal and reduced the wife's compensation to about 1,013 Euros. The wife's subsequent appeal was dismissed on the basis that, while the hearing notice had been sent to the wrong address, the wife had failed to show that had she been present she would have adduced any evidence that could have led to a different result.

Respect for the right to a fair hearing, guaranteed by European Convention on Human Rights, Art 6(1), required that the wife be properly informed about the appellate process and that she be given the opportunity to comment on the husband's submissions. As the appeal court had not verified whether the wife had been duly apprised of the hearing, that practice, which was normally followed in the Lithuanian courts, had not been followed in this case. The husband's participation at the appeal hearing had enabled the husband to state his arguments on the merits of the case, arguments that were not communicated to the wife and to which she could not reply. Thus, the effect that the wife's observations might have had on the appellate decision could not be assessed. More importantly, what was at stake was a litigant's confidence in the workings of justice, based, inter alia, on the knowledge that an opportunity would be given to express views on every document in the file. There had been a violation of Art 6(1).