V.P. v. Lithuania

The author of the communication is V.P., a national of Lithuania born in 1975. The author claims to be the victim of violations by the State Party of articles 3 (a) and (c), 4 (1) (e), 5 (2), 13, 19 and 28 of the Convention. The Optional Protocol entered into force for the State Party on 17 September 2010. The author is represented by counsel.

On 29 January 2020, the State Party requested that the admissibility of the communication be examined separately from the merits. On 2 April 2020, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied the State Party’s request.

On 7 and 21 January 2021, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied the requests from the author’s counsel for protection measures and for his anonymity, respectively.

On 25 January 2003, an armed gang entered the author’s house and shot him, damaging his lungs, ribs and legs. The author thus acquired a disability, which was initially assessed as being at 45 per cent and then reassessed in 2014 at 60 per cent. On 11 April 2005, he lodged a claim for damages under criminal proceedings for the attack against him. On 8 September 2006, a Šiauliai court convicted the gang members and recognized that the author had a right to damages but ordered that a civil chamber of the same court should consider the question of damages. On 5 December 2006, following an appeal by the author, Šiauliai Regional Court upheld that order. On 11 July 2007, the author sued all the gang members for damages, claiming 250,000 Lithuanian litas with 5 per cent interest calculated from 11 April 2005. On 2 April 2009, Šiauliai Regional Court ordered one of the gang members to pay the author 50,000 litas. In a judgment of 31 January 2011, the Court of Appeal of Lithuania increased the damages awarded to the author to 80,000 litas with 5 per cent interest calculated from 11 July 2007. On 15 April 2011, the author filed a cassation appeal claiming the difference of 170,000 litas between his initial claim and the damages granted and asking for the interest to be calculated from 11 April 2005. On 3 March 2014, the Supreme Court of Lithuania upheld the decision of the Court of Appeal regarding the amount of the damages but set the starting date of the interest at 30 August 2007.

The author claims a breach of his rights under articles 3 (a) and (c), 4 (1) (e), 5 (2), 19 and 28 of the Convention, as the State Party’s authorities awarded him insufficient compensation for his disability and inaccurately assessed his capacity to work at 40 per cent. The author requested 250,000 litas, the equivalent of 128 average monthly salaries at the time, but was only awarded 80,000 litas, the equivalent of 41 monthly salaries. According to the author, the gang shot him to cause him to acquire a disability or death and their intention was thus to discriminate against him on the basis of his disability or to kill him. Given the State Party’s obligation to protect him from discrimination by any person, the decision to award him the equivalent of 41 average monthly salaries rather than 128 constitutes a breach of his rights under articles 4 (1) (e) and 5 (2) of the Convention. It also constitutes a breach of his right to dignity under article 3 (a), as he has three minor children; his right to full and effective participation under article 3 (c), as the damages awarded might not re-establish his full and effective participation; his right to live independently and be included in the community under article 19, as the damages awarded might not re-establish such living and inclusion; and his right to an adequate standard of living under article 28 of the Convention, of which the shooting deprived him and which the damages awarded might not re-establish.

The author also claims a breach of his rights under article 13 of the Convention, as he lodged a claim for damages on 11 April 2005 as part of the criminal proceedings, but the Supreme Court later held that he could not lodge the claim within said procedure and had to wait until its termination in order to start separate civil proceedings, and that the interest on the damages would start only from the date of the decision on the admissibility of the claim. However, according to the author, article 13 of the Convention provides persons with disabilities with the right to claim damages immediately, so on 11 April 2005 in his case.

The author invites the Committee to request that the State Party reopen his case and pay him damages to cover the part of his claim not previously granted, that is, 170,000 litas plus 5 per cent interest on that sum starting from 11 April 2005 and €10,000 in costs. The author requests that the State Party be invited to educate public servants and judges about the rights under the Convention; to dismiss public servants who deny the binding nature of the Convention and the Committee’s Views and concluding observations; to ensure that the present breaches of the Convention are investigated promptly, thoroughly and impartially; to hold the perpetrators to account; and to avoid committing the same breaches in the future.

In its observations dated 29 January 2020, the State Party notes that, in his appeals, the author objected to the amount of the non-pecuniary damages and the joint civil liability of the defendants, but did not claim that they had discriminated against him on the basis of his disability or that they had infringed his dignity pursuant to articles 3 (1), 4 (1) (e) and 5 (2) of the Convention. The State Party therefore considers that the communication is inadmissible under article 2 (d) of the Optional Protocol.

The State Party also considers that the communication is inadmissible under article 2 (b) and (e) of the Optional Protocol, as it is incompatible with the provisions of the Convention and insufficiently substantiated, given the absence of any indication as to how the State Party breached the author’s rights under the Convention. Referring to article 28 of the Convention, the State Party observes that the non-pecuniary damages awarded constitute a lump-sum payment for the damage caused to his health and should not be considered as a measure taken to ensure an adequate standard of living. Instead, periodic social benefits are paid to him that ensure his adequate standard of living. The author was not subjected to any discriminatory treatment.

In his comments dated 28 February 2020, the author affirms that, in his domestic complaint, he argued that the gang intended to cause him to acquire a disability, which, he submits, amounts to a complaint of discrimination on the ground of disability. As he had claimed before the courts that the gang robbed his house while he had a disability and could not resist, he has effectively invoked a violation of his rights under article 3 (a) of the Convention. The author did not invoke specific provisions of the Convention, as the Convention is not part of the Civil Code and the representative of the State Party, with influence on judges, has publicly stated that the Convention is not binding. Thus, the author submits that he has exhausted domestic remedies.

The author argues that he has sufficiently substantiated his claims. The gang violated his rights under the Convention by causing his disability and robbing him of his property. With respect to article 28 of the Convention, the State Party breached his rights by refusing to compensate him adequately. As he was 28 years old at the time of the robbery, he could have worked for another 37 years until reaching the age of 65 years at which he could have received a pension. With a remaining capacity to work of 40 per cent, he can only earn income equivalent to 14.8 years of full-time work and has thus been denied income equivalent to 22.2 years or 266 months. He claimed the equivalent of 128 average monthly salaries instead of 266, but was awarded only the equivalent of 41. The State Party failed to provide adequate compensation for breaches of the Convention by not awarding him the remaining equivalent to 87 average monthly salaries. The author refutes the State Party’s claim that it has fulfilled his rights under article 28 of the Convention by paying him social benefits, as the concept of an adequate standard of living is broader than that and covers loss of income caused by his disability.

The author submits that his claim under article 13 of the Convention is sufficiently substantiated, as the principle of effective access to justice entails the right to obtain interest on damages to be paid from the date of lodging the claim. The author filed his claim on 11 April 2005, but the Supreme Court held that he had to wait until the end of the criminal procedure to start separate civil proceedings, and that the interest on damages started to accumulate on 11 July 2007, the day of the decision on the admissibility of the civil claim following the conclusion of the criminal proceedings.

The author requests that he be paid 87 average monthly salaries, applying the average gross monthly salary of 2020, with 5 per cent interest starting from 11 April 2005 and €13,000 for legal costs.

In its observations dated 27 July 2020, the State Party notes that article 30 (2) of the Constitution provides that compensation for material and moral damages is to be established by law. Material damages are, in principle, compensated fully. Moral damages, however, can only be assessed conditionally and compensated materially. The State Party’s Civil Code does not limit the amount of compensation that can be awarded for moral damages. The amount of monetary compensation in each case is determined by the courts in accordance with article 6.250 of the Civil Code, taking into account individual circumstances, including the consequences of the harm, the responsibility of the person who caused the harm, that person’s situation with regard to property, the amount of material damage and the principles of fairness, justice and reasonableness. Significant health issues are also considered. Thus, in the case of the author, the court considered the damage to his state of health, the intentional brutality of the defendants, the severity of the injury and the long-lasting physical and mental consequences for the author, who was still young and whose ability to choose his job had been limited. The court also considered that his state of health was partially affected by other factors, including a childhood neurological infection. According to the State Party, the purpose of monetary compensation for moral damage was not to compensate all possible future wage losses, the calculation of which was not always possible, including in this case, because the author continued working. Rather, the purpose was to identify material preconditions for recreating what could not be returned and to compensate as fairly as possible what often could not be replaced, including money and material possessions. Thus, the courts ensured the proper application and interpretation of the Civil Code in determining the amount of monetary compensation.

Regarding the author’s claim under article 13 of the Convention, the State Party notes that, pursuant to the Civil Code, interest awarded as part of court proceedings is paid from the commencement of the case in court until the judgment has been fully executed. The court is not able to change the calculation of the interest at its discretion. As the author filed his claim for interest only on 11 July 2007 and his action was accepted on 30 August 2007, his claim under article 13 of the Convention is unfounded. The State Party concludes that the author received effective non-pecuniary damages and that he did not experience discrimination.

In his comments dated 12 December 2020, the author claims that the State Party has failed to legislate for the possibility of invoking the Convention before the Supreme Court and to recognize the Convention as part of its Civil Code. Moreover, a representative of the State Party has publicly denied that the Convention is binding. Therefore, the author has not invoked specific articles of the Convention.

According to the author, when a disability is caused intentionally, the person responsible must provide an adequate standard of living to the victim for the rest of the latter’s life, but the State Party failed to issue an order to that effect. The author reiterates that the concept of an adequate standard of living goes beyond social protection and covers loss of income brought about by the fact that the gang caused him to acquire a disability.

Under article 13 of the Convention, the author argues that he should have been allowed to lodge a civil claim as part of the criminal proceedings and that the courts’ decision that he could only lodge a civil claim after the conclusion of the criminal proceedings could only be explained by corruption. Despite the practice of considering civil claims within criminal proceedings, the author was obliged to pay court fees and hire a private lawyer for the separate civil proceedings, which placed a considerable financial burden on him. He was disadvantaged, as the interest was calculated as starting from 11 July 2007 rather than from 11 April 2005.

In its additional observations dated 16 April 2021, the State Party qualifies the author’s communication as “fictitious” and argues that his counsel “mocks” the Convention, the Optional Protocol and the State Party. The State Party notes that, in its judgment of 2 April 2009, Šiauliai Regional Court established that the author acknowledged that his pre-existing health conditions had affected his capacity to work and that the robbery was thus not the only factor. The State Party disputes the claim that the robbery would not have happened if the author had not acquired a disability and that this constituted discrimination. According to the State Party, the robbers’ only intention was to steal valuables and they did not intend and could not know that their shooting would result in the author’s disability. The State Party considers that the author was properly compensated for his suffering. Compared to the average gross monthly salary at the time of 2,072 litas, the compensation of 80,000 litas was significant.

The State Party affirms that the treaties it has ratified are a constituent part of its legal system. The Supreme Court has directly applied the Convention in holding that certain provisions of the Civil Code were unlawful.

In his comments dated 26 August 2021, the author argues that the State Party acknowledges that he did not have a disability before the robbery and that the robbery happened because the gang members had caused him to acquire a disability. They would not have been able to rob a person who did not have disabilities and he was thus discriminated against. The gang members robbed him with the intention of excluding him from society, as defending one’s home constitutes participation in society. The author claims that the State Party’s denial that the gang members intended to cause him to acquire a disability or to murder him is insulting and he requests the Committee to award him 10 gross average Lithuanian salaries in compensation. He requests the same amount for his counsel because of the persecution, harassment and intimidation by a State Party representative and €15,000 for legal costs. He requests that the Committee formulate the amount of compensation due in specific figures.

The author argues that the Civil Procedure Code does not provide for the possibility of reopening a case based on Views adopted by the Committee. Moreover, the Supreme Court refused to execute the Committee’s Views in Makarov v. Lithuania.⁴

4. CRPD/C/18/D/30/2015. ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 70 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes that, whereas the author complains of several judicial decisions that were taken before the entry into force of the Optional Protocol for the State Party on 17 September 2010, the Court of Appeal and the Supreme Court issued their decisions regarding the author’s claims after said date, on 31 January 2011 and 3 March 2014, respectively. It observes that both of those decisions addressed the main issue raised before the Committee, namely, the amount of compensation awarded to the author following the acquisition of his disability. The Committee therefore considers that it has competence ratione temporis to consider the present communication pursuant to article 2 (f) of the Optional Protocol.⁵

5. S.K. v. Finland (CRPD/C/26/D/46/2018), para. 8.3. ↩

The Committee notes the author’s claim that the compensation granted to him is inadequate as it is short of the equivalent of the monthly income he allegedly will have lost up to the age of 65 because of the disability he acquired. In that regard, the Committee considers that the determination of compensation for the author in connection with his disability pertains to the application of domestic legislation. The Committee recalls that it is generally for the courts of States Parties to the Convention to evaluate facts and evidence or the application of domestic law in a particular case, unless it is found that the proceedings before the domestic courts or the evaluation made were clearly arbitrary or amounted to a denial of justice.⁶ In the present case, the Committee notes the observation by the State Party that the courts determine the amount of monetary compensation in accordance with article 6.250 of the Civil Code, taking into account individual circumstances, including, in the author’s case, the damage to his state of health, the intentional brutality of the defendants, the severity of the injury and the long-lasting physical and mental consequences for the author, who was still young and whose ability to choose his job had been limited. In the light of the foregoing, and in the absence of any other relevant materials on file, the Committee considers that the author has failed to substantiate, for purposes of admissibility, the claims that the decisions of the domestic courts were arbitrary or constituted a denial of justice.

6. Sabadie v. France (CRPD/C/29/D/52/2018), para. 10.4; Sahlin v. Sweden (CRPD/C/23/D/45/2018), para. 8.6; Jungelin v. Sweden (CRPD/C/12/D/5/2011), para. 10.5; L.M.L. v. United Kingdom of Great Britain and Northern Ireland (CRPD/C/17/D/27/2015), para. 6.3; M.Y. v. Sweden (CRPD/C/24/D/49/2018), para. 6.6; F.O.F. v. Brazil (CRPD/C/23/D/40/2017), para. 8.7; R.I. v. Ecuador (CRPD/C/22/D/25/2014), para. 11.17; A.F. v. Italy (CRPD/C/13/D/9/2012), para. 8.4; and Bacher v. Austria (CRPD/C/19/D/26/2014), para. 9.7. ↩

The Committee notes that the author’s understanding of discrimination on the basis of disability may not coincide with the meaning of this term under article 2 of the Convention. However, as this point has not been invoked as a separate claim, the Committee deems it unnecessary to address this question in the present decision. Moreover, the Committee notes that the author has not provided any information regarding the State Party’s responsibility for the attack by the gang members. Similarly, the Committee considers that the author has failed to provide any evidence to show that he or his counsel have been subjected to intimidation or reprisals by means of the State Party’s observations in the present communication. Accordingly, the Committee finds that the communication is insufficiently substantiated and therefore inadmissible under article 2 (e) of the Optional Protocol.

The Committee therefore decides: (a) That the communication is inadmissible under article 2 (e) of the Optional Protocol;