Month: September 2024

The installation of CCTV cameras has become a very popular phenomenon these days. Naturally, this is one of the most effective means of ensuring security. It is therefore not surprising that, especially in school areas and even in classrooms, they are used to prevent, for example, the use and distribution of drugs. The question is: is it legal?

Just this summer, the State Data Protection Inspectorate investigated a parental complaint about video surveillance during lessons.

The educational establishment argued to the inspectorate that the cameras in the classrooms were installed legally because pupils took textbooks or expensive scientific calculators given to them by the school, pupils often took each other's belongings, and the school received complaints from representatives of minors about missing or abandoned items in the classroom during lessons. Also, some minors vandalised property after school staff had left the classroom for a few minutes. There was a case of a minor arbitrarily opening the window of a classroom on the 2nd floor and climbing onto the roof. Minors were also observed smoking and very often failing to return their keys after using the toilet.

The position of the State Data Protection Inspectorate was clear and categorical - the video filming was illegal. The mere fact that no objects are found or that a minor is responsible for the disappearance or damage of property does not justify the use of the extreme measure of video surveillance during classroom lessons.

According toMantas Baigis, a lawyer and expert in personal data protection law at AVOCAD, the educational establishment received the decision and the accompanying fine of €2,000 because it had failed to prove that its interest outweighed the right to privacy of minors, who are classified as a vulnerable group of persons. "The school did not even analyse the negative impact and effects on minors of round-the-clock video surveillance during school hours," observes Mantas Baigys.

According to the lawyer, this should not come as a surprise, as video surveillance in classrooms is also strictly enforced in other EU countries. For example, the French Data Protection Supervisory Authority takes the position that it is permissible to film building entrances and exits during school hours for security reasons, e.g. to prevent unauthorised access, but that systematic and continuous surveillance of pupils and staff in school premises, including classrooms, is excessive and not allowed.

The Estonian Data Protection Supervisor considers CCTV cameras to be an appropriate solution to protect school grounds for security reasons, but is of the very strict opinion that even for the safety of individuals in the classroom, video surveillance is prohibited.

In Italy, CCTV inside schools is also only available to protect the building and school property from vandalism, but only at the scene of potential incidents. According to the authorities in this country, cameras can only be switched on outside working hours and are not allowed to be used during lessons or other activities involving students.

According to Mantas Baigis, a lawyer at AVOCAD, video surveillance must first of all comply with the general provisions of the GDPR. This means that personal data may only be processed in accordance with the principles relating to the processing of personal data as set out in Article 5 of the GDPR and where such processing can be based on at least one of the legitimate grounds for the processing of personal data set out in Article 6 of the GDPR.

The personal data protection law expert stresses that not only educational institutions, but also every organisation must pay attention to video surveillance, as any violation can result in thousands of fines, so it is highly recommended to have a strong case for the use of cameras before installing them, and for organisations that already use cameras to assess whether they are compatible with GDPR.

We often hear about lengthy and complicated divorce processes. One way to make this unpleasant process easier is through a prenuptial agreement. Most people avoid this written agreement because it supposedly means divorce. This thinking is particularly common among the older generation. But according to lawyers, this is the wrong way to think. Rokas Puodžiūnas, a lawyer at AVOCAD, points out that a prenuptial agreement is an excellent tool for settling property issues in a marriage, without affecting the spouses' personal relationships. So, what is the essence of a prenuptial agreement and what can it establish and what are the consequences of concluding one?

A prenuptial agreement is an agreement between the spouses setting out their property rights and obligations during the marriage, after divorce or during separation. The essence of a marriage contract is to determine the legal regime of one's property other than that provided for by the law, and to determine and define the other property rights of the spouses, which are enforceable by agreement between the spouses.

The law therefore allows spouses to decide on their own property relations. A marriage contract can settle 3 groups of property issues:

• The legal regime of the property.
• Spousal maintenance.
• Division of property in the event of divorce or legal separation.

Legal regime of the property

The law provides that, in the absence of a marriage contract providing for a different legal regime, matrimonial property acquired before the marriage is the separate property of each spouse and property acquired after the marriage is to be considered as community property. The marriage contract allows for a different legal regime of property than that provided for by law.

The community property includes:

1. assets acquired after the marriage in the name of both spouses;
2. income from assets owned by one spouse in his or her separate property;
3. income derived from the joint activities of both spouses and income derived from the activities of one spouse, excluding funds necessary for the spouse's professional activities;
4. an enterprise and the income derived from its activities or other business;
5. income received after the marriage from the employment or intellectual activity of the spouses or of one of them, dividends, pensions, allowances and other benefits other than those intended for a specific purpose (for example, compensation for damage to health and non-pecuniary damage, targeted material support for one spouse only, etc.).

The spouses dispose of the community property by common agreement. The spouse's share in the community property may be enforced against the spouse's personal debts. In the event of divorce, the court must decide on the division of the matrimonial property.

The marriage contract can stipulate that:

• Property acquired both before and during the marriage is the personal property of each spouse. Under this regime, not only assets acquired before the marriage remain the separate property of each spouse, but also assets acquired after the marriage become the separate property of each spouse. It should be noted that the choice of this type of regime does not affect the obligations relating to the satisfaction of the family's needs (e.g. child support; home maintenance expenses). The statutory limits on family property must also be respected. Under this regime, the bailiff will not be able to enforce against the other spouse's assets.
• Property acquired by each spouse before marriage and owned by them individually becomes their community property after the marriage is registered. Under this regime, assets acquired by each spouse before the marriage also become community property after the marriage. In that case, assets acquired before the marriage may be transferred by a spouse only with the consent or authorisation of the other spouse, and the other spouse's share of those assets may be subject to recovery in respect of the other spouse's personal debts. In the event of divorce, these assets are part of the matrimonial property to be divided between the spouses.
• Property acquired during the marriage is community property. Under this regime, assets acquired during the marriage will belong to the spouses in predetermined shares. The marriage contract must either expressly state the shares in which the spouses are to acquire the property, or it must expressly address the rules for determining the shares (e.g. the property will belong to each spouse in the proportion 50:50).

The spouses can also agree in the marriage contract to a mixed property regime. Suppose that one of the above regimes applies to one part of the property and the rest is subject to the other property regime.

As mentioned above, in addition to the regime applicable to the property, the spouses may also determine how the property is to be divided upon divorce and make provisions for maintenance between the spouses.

Drawing up a prenuptial agreement

Only spouses, or persons intending to marry, can conclude a marriage contract. A marriage contract is therefore classified according to the point in time at which it was concluded into:

• pre-nuptial agreement;
• prenuptial agreement.

As the name suggests, a pre-nuptial agreement is concluded before the marriage and a post-nuptial agreement after the marriage. The post-nuptial agreement is valid for the spouses from the moment of its signature or from a future moment agreed by the spouses. The only difference between them is the moment of conclusion. Therefore, persons may have been married for more than 10 years and decide to conclude a prenuptial agreement. The parties may also agree that certain provisions of the contract will apply after a certain period of time (e.g. after 3 years of marriage) or that the relevant provisions will cease to apply after a certain period of time. In any case, the pre-nuptial agreement does not enter into force until after the marriage.

The marriage contract must be in writing and certified by a notary public; failure to comply with the required form will result in the contract being considered invalid. Once the contract has been concluded and notarised, it must be registered in the Register of Marriage Contracts and can only be used against third parties once it is registered.

The marriage contract can be terminated at any time by mutual consent of both spouses. The termination of a marriage contract is subject to the same requirements as its conclusion, i.e. the termination must be certified by a notary. After the dissolution of the marriage contract, the matrimonial property continues to be subject to the legal regime established by law. The marriage contract may also be amended by agreement of the spouses, certified by a notary. The legal regime of the property acquired before the modification or termination of the contract is not altered.

Thus, according to AVOCAD lawyer Rokas Puodžiūnas, a prenuptial agreement is not an expression of mistrust, but an excellent tool to balance the mutual property interests in a marriage. A large part of the disputes that arise (both in and out of marriage) are caused by monetary disagreements, so it is advisable to try to avoid the causes of such disputes.

In Lithuania, mistrust in courts and judges is still a very painful and topical issue. The efficiency of the legal system is one of the fundamental guarantees of a democratic state, but mistakes and abuses by judges or other court officials can have serious consequences for society and individuals. Judicial decisions not only shape the perception of justice, but also directly affect people's lives.

When judges or other court officials do not act in accordance with the principles of law or make manifest errors, civil liability for the damage caused is at stake. Should the State be liable for wrong decisions and errors in the administration of justice and what are the limits of such liability? How should judges and other court officials be held accountable for their actions, answers Domantas Velykis, Junior Associate at the law firm AVOCAD .

The Civil Code provides that the State shall fully compensate for damage caused by unlawful acts of a judge or court in civil proceedings, if the damage was caused by the fault of the judge or other court official.

This rule establishes the State's liability for errors made by judges in the exercise of their judicial function in civil proceedings. It also establishes a very broad and, it should be stressed, non-exhaustive list of possible judicial errors, since the civil liability of the State may arise from the court's error in the procedural steps to be taken, the content of the judgment, the court's interpretation of the law, the assessment of evidence, the unlawful acts of the court's other officials carrying out the internal administration of the court, and so on.

The principle of the independence of the judiciary, derived from the Constitution, leads to a legal framework whereby the liability of the State for errors committed by the judiciary is more limited than in comparison with the State's civil liability for errors committed by other public authorities: where it is sufficient for the injured party to prove the unlawful acts of the public authorities, the officials, and the court (in criminal cases), the causal link, and the damage, i.e., in this case, strict liability is imposed without fault.

State liability for errors by a judge in the exercise of his or her judicial functions has been established as a kind of compromise between the principles of the right to a fair trial and judicial independence. It is this way of establishing the State's liability which ensures that victims are compensated for their loss, but at the same time protects judges from claims brought against them personally, since it is the State, and not the judges themselves, which is responsible for judicial errors.

The legality and reasonableness of procedural decisions of courts is subject to review by the instance system of review of judicial decisions, i.e. appeal and cassation (and proceedings may be reopened in cases where a procedural decision has been delivered and has become final). It is understood that the instance system cannot objectively eliminate all errors committed by the courts.

Causes of errors by judges and conditions for liability

Case law identifies the following reasons for judicial error: the limits of judicial knowledge, imperfections in the law, incompatibilities, gaps in the law or in the law, the realistic capacity of human beings to know everything, the judge's subjective characteristics, and many other factors.

However, while there are many possible reasons why judges may make mistakes, this does not justify the court making gross and obvious errors. Otherwise, a person's right to a fair trial and to the administration of justice would be denied. Therefore, errors made by judges are first of all corrected by way of an instance procedure and, if they cannot be corrected in this way, in order to ensure that the fundamental rights of the individual are not denied, the individual may bring an action to hold the State liable for the errors made by judges in civil proceedings.

As in the case of standard civil liability, in order to recover damages from the State for the court's unlawful actions, the claimant must prove the four conditions for civil liability in tort: damage (loss), unlawful acts, causation and fault.

Fault is an essential condition for the civil liability of judges

According to case law, fault is an essential condition for the civil liability of judges. According to the Supreme Court of Lithuania, the fault of a judge can only be established if he or she has committed an obvious and gross error in the interpretation and application of law.

In assessing whether a judge has committed a serious and manifest error, the court normally first determines what the judge did wrong and which rules of law were applied. Secondly, it determines and assesses the legal framework and the purpose of the application of the rules of law and the conduct in which the judge erred. Thirdly, it shall assess whether the error committed by the judges meets the criteria of gravity and manifest error.

Importantly, gross and manifest error of judgment is an evaluative concept, which means that the legislation does not specify what constitutes a gross and manifest error of judgment, and the interpretation and assessment of this feature is therefore entirely at the court's discretion.

In the case-law, there is an exemplary list of the assessment of the obviousness and seriousness of a judicial error, according to which the court may take into account various circumstances that are most relevant to the situation at hand, such as the intelligibility of the terms used in the applicable legal provision, the accuracy of the provision, the clarity of the evidence, the complexity of the case, whether the court was required to apply the provision only in the light of the clear circumstances of the case and of the applicable provision of law, and other circumstances.

The form of fault of the judge who committed the unlawful act is irrelevant for the purposes of the State's civil liability, i.e. a court may commit a grave and manifest error either intentionally or negligently. The fault of a judge is understood and interpreted objectively, i.e. it is assessed whether another judge in the same situation would have acted differently in the knowledge of identical circumstances, while the subjective element of the fault of a particular judge is not examined, i.e. it is not examined how the judge, who may have committed a serious and manifest error, understands the acts he himself has committed.

In this case, only the circumstances known at the time the judgment was delivered, when a serious and manifest error may have been committed by the court, should be considered for the purposes of reaching a correct decision. However, circumstances which subsequently came to light, changed or were unknown to the court as a whole, and which resulted in the damage suffered, must not give rise to liability.

Here are some practical examples of the application of state liability for unlawful actions of a judge or court in civil proceedings, as found in the practice of the Supreme Court of Lithuania:

• In the first civil case, the Court of Appeal ruled on a public procurement case. The defendant (the contracting authority) complied with the decision (rejected the supplier's tender), but after the decision was implemented, a cassation appeal was lodged and the Supreme Court of Lithuania annulled the part of the Court of Appeal's decision that had already been implemented by the defendant. The supplier initiated a second civil proceeding seeking annulment of the contracting authority's decision to reject the supplier's tender. In the second civil case, the court upheld the action on the basis of the judgment of the Supreme Court of Lithuania in the first civil case and ordered the supplier to pay the costs. The contracting authority brought an action for civil liability of the State on the basis of the unlawful action of the court of first instance - the judgment of the Court of Appeal in the first civil case - claiming reimbursement of the costs awarded in the second civil case. The Court of First Instance refused to uphold that action, on the ground that, at the time of the adoption of that judgment, it was not clear which by-law was to be applied and that there was evidence in the case-file to justify such a decision, and that, therefore, it should not be considered that the judges of the Court of Appeal committed a manifest error of interpretation and application of the law;
• In the civil case, the court did not grant the application for interim measures for the attachment of immovable property. The defendant sold the property and kept the proceeds in cash instead of in a bank account. The court granted the application and granted interim measures in the form of a deposit in the court's escrow account of the amount securing the claimant's claim. The defendant failed to comply with the interim measures imposed by the court. The court, having heard the case, decided to uphold the action. However, the funds recovered from the defendant were insufficient to cover the claim. The applicant brought an action for civil liability of the State on account of the court's unlawful conduct. In assessing whether the judge had committed a serious and manifest error, the Court of First Instance stated that the decisions of the court were based on the relevant rules of law and on the practice on the application of interim measures which had been established at the time and which had not changed, that the issues essential for the imposition of those measures had been assessed, that the procedural decisions had been duly reasoned, and that, therefore, it was not to be regarded as a case where the judge had committed a serious and manifest error and that, accordingly, the action was rejected;
• The civil action was brought for a declaration that the dismissal was unlawful and for the payment of compulsory redundancy payments from the date of dismissal until the date on which the judgment enters into force. The court assigned the decision on the admission of the action to a judge who was on annual leave at the time, so that the decision on the admission of the action was carried out within approximately one month of the time-limit prescribed. If the court subsequently upheld the action, the defendant was liable to pay the compensation for the enforced absence, including the time during which the time-limit for the admission of the action had been exceeded as a result of the court's action. The employer brought an action for damages for the loss suffered as a result of the court's unlawful action in the form of compulsory redundancy payments in respect of the period of delay. The Court found that the delay in the adoption of the action could have been avoided by not assigning the case to the judge during his leave, which constituted a serious and manifest error.

In conclusion, the liability of judges in civil proceedings is a crucial legal institution that contributes to the credibility of the justice system and public confidence in the courts. The complexity of this institution stems from the need to strike a balance between the independence and responsibility of judges, in order to protect them from unfounded accusations, while at the same time ensuring that abuse or manifest errors are appropriately dealt with. However, this remains a very sensitive subject, as judicial decisions often involve multiple interests that are not always properly understood or appreciated by the public. Only consistent legal education and discussion with the public can contribute to a clear understanding of the nature and importance of the responsibility of judges for the rule of law.