Orzeczenie: Wyrok w sprawie Marszu Równości w Wilnie
Komentarz (w j. angielskim) autorstwa Jakuba Cupriaka do wyroku Naczelnego Sądu Administracyjnego Litwy w sprawie zakazu Marszu Równości w Wilnie.
Facts and administrative proceedings
On 22 January 2010, three individuals, Vladimiras Simonko, Eduardas Platovas and Vytautas Valentinavičius, all of them leading figures of Lithuanian non-governmental organizations active in the area of advancement of LGBT rights, submitted an application to the Vilnius City Municipality for permission to organize a march “For Equality” (Lithuanian: “Už lygybę”) on 8 May 2010. The march was intended to be part of a yearly LGBT pride event called “Baltic Pride”, taking place rotationally in the three capitals of the Baltic states: Tallinn, Riga and Vilnius.
In 2010, Vilnius was scheduled to host the event. The city authorities did not agree for the march to be held in a central location of the town and to end with an approach of the participants to the Vilnius City Hall building, claiming that other events were already planned in front of the City Hall on that day. After a series of meetings with the organizers, on 26 January 2012, the Administrative Director of the Vilnius City Municipality issued a permission (No. 40-55) to hold the march in a location outside the city centre, on an area adjacent to the Vilnius Sports Palace. The permission was later amended by the same Administrative Director on 20 February 2013 (No. 40-129) - the amendment included a minor change to the route of the march. After the amended permission has been issued, the Department of Cultural Heritage under the Ministry of Culture of the Republic of Lithuania expressed concerns about the usage of the area adjacent to the Vilnius Sports Palace as a place for a public meeting, since it was the site of a former Jewish cemetery.
The organizers took the opinion of the Department of Cultural Heritage into consideration and, during a meeting with the city authorities on 14 April 2010, agreed to hold the march on Upės St. – a mostly vacant site located on the bank of the Neris river, also outside the city centre. The Administrative Director of the Vilnius City Municipality issued a permission to hold the march in this place on 23 April 2010 (No. 40-352) .
Proceedings before the Regional Administrative Court
On 3 May 2013, the Lithuanian Attorney General, Raimondas Petrauskas, and a member of the Kaunas City Council, Stanislovas Buškevičius, filed separate applications to the Vilnius Regional Administrative Court to revoke the decision of the Administrative Director of the Vilnius City Municipality allowing the march to take place. The court decided to examine the two applications jointly on grounds of their similarity. The Attorney General claimed that he is in possession of information that radical and destructive groups may try to interfere with the march, which can amount to a threat to public health and justify revoking the decision which allows the march to take place. According to the Attorney General, these facts have appeared after the permission to hold the march has been issued.
The other applicant, member of the Kaunas City Council Stanislovas Buškevičius, claimed that holding the march would be contrary to values important for the Lithuanian society – honesty, fidelity, fertility and human dignity. He further claimed that presenting homosexuality as an acceptable lifestyle is contrary to the views of the majority of the population. The court decided to adopt interim measures before examining the merits of the case. These interim measures amounted to a suspension of clauses 1-4 of the decision of the Administrative Director of the Vilnius City Municipality from 23 April 2010 (No. 40-352), allowing the march to take place. The suspension of these clauses was tantamount to a ban of the march. The court argued that the interim measures adopted were necessary and proportional: If the future decision on the merits fell in favor of the applicants and if it were adopted after 8 May 2010, it would be impossible to re-establish the situation which existed before the march, as the march would have already taken place, which would render the enforcement of the judgment impossible. On the other hand, if future the decision on the merits fell in favor of the defendants, nothing would prevent the march from being held at a later date.
Proceedings before the Supreme Administrative Court of Lithuania
On 5 May 2010, the organizers of the march “For Equality” appealed to the Supreme Administrative Court of Lithuania, demanding the decision on interim measures adopted by the Vilnius Regional Administrative Court to be overturned . The appellants claimed that the interim measures imposed by the Vilnius Regional Administrative Court are unfounded, not necessary in a democratic society and disproportionate to the aim pursued.
The Supreme Administrative Court of Lithuania, deciding the matter in the favor of the applicants on 7 May 2010, underlined that the adoption of an interim measure under Lithuanian law is subject, inter alia, to rules set out in Council of Europe Committee of Ministers Recommendation No. R (89) 8 on Provisional Court Protection in Administrative Matters . According to this Recommendation, the court, deciding on interim measures, is to take account of all relevant factors and interests. The Supreme Administrative Court of Lithuania did not share the opinion of the Vilnius Regional Administrative Court that a final decision in favor of the organizers of the march would allow for holding the march at a later date, since the contested administrative decision of the Administrative Director of the Vilnius City Municipality only applies to the event scheduled for 8 May 2010 and does not constitute a basis for the organization of subsequent marches.
Therefore, the interests of the organizers of the march were not properly taken into account. The Supreme Administrative Court referred to the judgment of the European Court of Human Rights in the case of Bączkowski and Others v. Poland (application no. 1543/06), underlining that democracy is not simply the rule of the majority and that a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (Bączkowski and Others v. Poland, p. 63). It also repeated, after the European Court of Human Rights, that the state’s positive obligation under article 11 of the European Convention on Human Rights is to secure the effective enjoyment of the freedom of assembly and that this obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimization (Bączkowski and Others v. Poland, p. 64).
The Court also underlined that according to the Council of Europe Committee of Ministers Recommendation CM/Rec(2010)5 On Measures to Combat Discrimination Based on Sexual Orientation or Gender Identity , the state is to ensure effective use of the freedom of peaceful assembly without discrimination on grounds of sexual orientation or gender identity. The Supreme Administrative Court of Lithuania shared the view of the applicants that the interim measures adopted by the Regional Administrative Court would have made a restitution of the previous state impossible if the case was to be decided after 8 May 2010, i.e. the scheduled date of the event, and were in fact a decision on the merits of the case. In conclusion, the Court found the adoption of the interim measures disproportionate to the aim pursued and changed the operative part of the decision of the Vilnius Regional Administrative Court so that the interim measures – the suspension of the decision of the Administrative Director of the Vilnius City Municipality allowing the march to take place – be lifted. The Court abstained from investigating if the interim measures were founded and necessary in a democratic society.
Importance of the case
The case may seem only of average interest at first, since none of the involved courts has made any new findings that would contribute to the development of the protection of rights of LGBT persons or of the freedom of assembly. Very few new arguments were raised that could be seen as arguments of a supranational importance. The Supreme Administrative Court of Lithuania based its judgment on findings of the European Court of Human Rights in the case of Bączkowski and Others v. Poland and on the relevant Recommendations of the Committee of Ministers of the Council of Europe. However, the case is still important for three reasons:
Firstly, it is a good example of proper reception of the case law of the European Court of Human Rights concerning freedom of assembly into national jurisprudence. It remains in sharp contrast to the decisions of the Russian courts challenged in the case Alekseyev v. Russia of the European Court of Human Rights (application no. 4916/07, 25924/08 and 14599/09).
Secondly, it constitutes a step forward in comparison to the case of Bączkowski and Others v. Poland. In the latter case, the national courts have failed to solve the issue before the considered assembly took place. Therefore, the European Court of Human Rights not only found a violation of articles 11 (freedom of association and assembly) and 14 (prohibition of discrimination), but also of article 13 (right to an effective remedy). In the present case, the Supreme Administrative Court of Lithuania decided on the matter only within two days after the appeal and one day before the scheduled event, giving the case priority over other pending cases and thus avoiding the infringement of article 13 of the European Convention on Human Rights. It is however worth noting that no special procedure of urgency exists under Lithuanian law which would spark the application of this solution in similar future cases. It is therefore for the courts to keep an appropriate level of awareness in their judicial practice.
Thirdly, the decision of the Supreme Administrative Court of Lithuania can be seen as part of a general trend in the development of the protection of rights of LGBT persons in Central and Eastern Europe. Where the legislatures are reluctant to secure the rights of LGBT persons, it is often the duty of the courts to do so, creating new procedures or establishing new interpretations of existing provisions. In Poland, only by way of jurisprudence rights granted to unmarried, cohabiting different-sex couples were made available also to cohabiting same-sex couples. In Latvia, the decision of the Supreme Court of 14 January 2008 (A42229505 SKA-5/2008) has paved way for the possibility of changing the legal gender on the individual's birth certificate. The Polish procedure of legal gender reassignment has also been established by purely jurisprudential means. In Lithuanian circumstances, the case AS822-339/2010 is the first successful LGBT-related case decided by a national court of the highest instance. Containing comprehensive references to the standard of protection established by the European Convention on Human Rights, it certainly can be described as a model case which will have a positive impact on future national jurisprudence.
Jakub Cupriak
1) http://archive.equal-jus.eu/804/1/BP_byla.pdf (access: 27 January 2013).
2) http://www.vilnius.lt/vaktai/Default.aspx?Id=3&DocId=30180188&Version=1 (access: 27 January 2013).
3) http://www.vilnius.lt/vaktai/Default.aspx?Id=3&DocId=30180748&Version=1 (access: 27 January 2013).
4) http://www.vilnius.lt/vaktai/default.aspx?Id=3&DocId=30182334 (access: 27 January 2013)
5) http://www.atviri.lt/uploads/files/dir88/dir4/11_0.php (access: 27 January 2013).
6) https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage= 2011090&SecMode=1&DocId=702300&Usage=2 (access: 27 January 2013).
7) https://wcd.coe.int/ViewDoc.jsp?id=1606669 (access: 27 January 2013)
On 22 January 2010, three individuals, Vladimiras Simonko, Eduardas Platovas and Vytautas Valentinavičius, all of them leading figures of Lithuanian non-governmental organizations active in the area of advancement of LGBT rights, submitted an application to the Vilnius City Municipality for permission to organize a march “For Equality” (Lithuanian: “Už lygybę”) on 8 May 2010. The march was intended to be part of a yearly LGBT pride event called “Baltic Pride”, taking place rotationally in the three capitals of the Baltic states: Tallinn, Riga and Vilnius.
In 2010, Vilnius was scheduled to host the event. The city authorities did not agree for the march to be held in a central location of the town and to end with an approach of the participants to the Vilnius City Hall building, claiming that other events were already planned in front of the City Hall on that day. After a series of meetings with the organizers, on 26 January 2012, the Administrative Director of the Vilnius City Municipality issued a permission (No. 40-55) to hold the march in a location outside the city centre, on an area adjacent to the Vilnius Sports Palace. The permission was later amended by the same Administrative Director on 20 February 2013 (No. 40-129) - the amendment included a minor change to the route of the march. After the amended permission has been issued, the Department of Cultural Heritage under the Ministry of Culture of the Republic of Lithuania expressed concerns about the usage of the area adjacent to the Vilnius Sports Palace as a place for a public meeting, since it was the site of a former Jewish cemetery.
The organizers took the opinion of the Department of Cultural Heritage into consideration and, during a meeting with the city authorities on 14 April 2010, agreed to hold the march on Upės St. – a mostly vacant site located on the bank of the Neris river, also outside the city centre. The Administrative Director of the Vilnius City Municipality issued a permission to hold the march in this place on 23 April 2010 (No. 40-352) .
Proceedings before the Regional Administrative Court
On 3 May 2013, the Lithuanian Attorney General, Raimondas Petrauskas, and a member of the Kaunas City Council, Stanislovas Buškevičius, filed separate applications to the Vilnius Regional Administrative Court to revoke the decision of the Administrative Director of the Vilnius City Municipality allowing the march to take place. The court decided to examine the two applications jointly on grounds of their similarity. The Attorney General claimed that he is in possession of information that radical and destructive groups may try to interfere with the march, which can amount to a threat to public health and justify revoking the decision which allows the march to take place. According to the Attorney General, these facts have appeared after the permission to hold the march has been issued.
The other applicant, member of the Kaunas City Council Stanislovas Buškevičius, claimed that holding the march would be contrary to values important for the Lithuanian society – honesty, fidelity, fertility and human dignity. He further claimed that presenting homosexuality as an acceptable lifestyle is contrary to the views of the majority of the population. The court decided to adopt interim measures before examining the merits of the case. These interim measures amounted to a suspension of clauses 1-4 of the decision of the Administrative Director of the Vilnius City Municipality from 23 April 2010 (No. 40-352), allowing the march to take place. The suspension of these clauses was tantamount to a ban of the march. The court argued that the interim measures adopted were necessary and proportional: If the future decision on the merits fell in favor of the applicants and if it were adopted after 8 May 2010, it would be impossible to re-establish the situation which existed before the march, as the march would have already taken place, which would render the enforcement of the judgment impossible. On the other hand, if future the decision on the merits fell in favor of the defendants, nothing would prevent the march from being held at a later date.
Proceedings before the Supreme Administrative Court of Lithuania
On 5 May 2010, the organizers of the march “For Equality” appealed to the Supreme Administrative Court of Lithuania, demanding the decision on interim measures adopted by the Vilnius Regional Administrative Court to be overturned . The appellants claimed that the interim measures imposed by the Vilnius Regional Administrative Court are unfounded, not necessary in a democratic society and disproportionate to the aim pursued.
The Supreme Administrative Court of Lithuania, deciding the matter in the favor of the applicants on 7 May 2010, underlined that the adoption of an interim measure under Lithuanian law is subject, inter alia, to rules set out in Council of Europe Committee of Ministers Recommendation No. R (89) 8 on Provisional Court Protection in Administrative Matters . According to this Recommendation, the court, deciding on interim measures, is to take account of all relevant factors and interests. The Supreme Administrative Court of Lithuania did not share the opinion of the Vilnius Regional Administrative Court that a final decision in favor of the organizers of the march would allow for holding the march at a later date, since the contested administrative decision of the Administrative Director of the Vilnius City Municipality only applies to the event scheduled for 8 May 2010 and does not constitute a basis for the organization of subsequent marches.
Therefore, the interests of the organizers of the march were not properly taken into account. The Supreme Administrative Court referred to the judgment of the European Court of Human Rights in the case of Bączkowski and Others v. Poland (application no. 1543/06), underlining that democracy is not simply the rule of the majority and that a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (Bączkowski and Others v. Poland, p. 63). It also repeated, after the European Court of Human Rights, that the state’s positive obligation under article 11 of the European Convention on Human Rights is to secure the effective enjoyment of the freedom of assembly and that this obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimization (Bączkowski and Others v. Poland, p. 64).
The Court also underlined that according to the Council of Europe Committee of Ministers Recommendation CM/Rec(2010)5 On Measures to Combat Discrimination Based on Sexual Orientation or Gender Identity , the state is to ensure effective use of the freedom of peaceful assembly without discrimination on grounds of sexual orientation or gender identity. The Supreme Administrative Court of Lithuania shared the view of the applicants that the interim measures adopted by the Regional Administrative Court would have made a restitution of the previous state impossible if the case was to be decided after 8 May 2010, i.e. the scheduled date of the event, and were in fact a decision on the merits of the case. In conclusion, the Court found the adoption of the interim measures disproportionate to the aim pursued and changed the operative part of the decision of the Vilnius Regional Administrative Court so that the interim measures – the suspension of the decision of the Administrative Director of the Vilnius City Municipality allowing the march to take place – be lifted. The Court abstained from investigating if the interim measures were founded and necessary in a democratic society.
Importance of the case
The case may seem only of average interest at first, since none of the involved courts has made any new findings that would contribute to the development of the protection of rights of LGBT persons or of the freedom of assembly. Very few new arguments were raised that could be seen as arguments of a supranational importance. The Supreme Administrative Court of Lithuania based its judgment on findings of the European Court of Human Rights in the case of Bączkowski and Others v. Poland and on the relevant Recommendations of the Committee of Ministers of the Council of Europe. However, the case is still important for three reasons:
Firstly, it is a good example of proper reception of the case law of the European Court of Human Rights concerning freedom of assembly into national jurisprudence. It remains in sharp contrast to the decisions of the Russian courts challenged in the case Alekseyev v. Russia of the European Court of Human Rights (application no. 4916/07, 25924/08 and 14599/09).
Secondly, it constitutes a step forward in comparison to the case of Bączkowski and Others v. Poland. In the latter case, the national courts have failed to solve the issue before the considered assembly took place. Therefore, the European Court of Human Rights not only found a violation of articles 11 (freedom of association and assembly) and 14 (prohibition of discrimination), but also of article 13 (right to an effective remedy). In the present case, the Supreme Administrative Court of Lithuania decided on the matter only within two days after the appeal and one day before the scheduled event, giving the case priority over other pending cases and thus avoiding the infringement of article 13 of the European Convention on Human Rights. It is however worth noting that no special procedure of urgency exists under Lithuanian law which would spark the application of this solution in similar future cases. It is therefore for the courts to keep an appropriate level of awareness in their judicial practice.
Thirdly, the decision of the Supreme Administrative Court of Lithuania can be seen as part of a general trend in the development of the protection of rights of LGBT persons in Central and Eastern Europe. Where the legislatures are reluctant to secure the rights of LGBT persons, it is often the duty of the courts to do so, creating new procedures or establishing new interpretations of existing provisions. In Poland, only by way of jurisprudence rights granted to unmarried, cohabiting different-sex couples were made available also to cohabiting same-sex couples. In Latvia, the decision of the Supreme Court of 14 January 2008 (A42229505 SKA-5/2008) has paved way for the possibility of changing the legal gender on the individual's birth certificate. The Polish procedure of legal gender reassignment has also been established by purely jurisprudential means. In Lithuanian circumstances, the case AS822-339/2010 is the first successful LGBT-related case decided by a national court of the highest instance. Containing comprehensive references to the standard of protection established by the European Convention on Human Rights, it certainly can be described as a model case which will have a positive impact on future national jurisprudence.
Jakub Cupriak
1) http://archive.equal-jus.eu/804/1/BP_byla.pdf (access: 27 January 2013).
2) http://www.vilnius.lt/vaktai/Default.aspx?Id=3&DocId=30180188&Version=1 (access: 27 January 2013).
3) http://www.vilnius.lt/vaktai/Default.aspx?Id=3&DocId=30180748&Version=1 (access: 27 January 2013).
4) http://www.vilnius.lt/vaktai/default.aspx?Id=3&DocId=30182334 (access: 27 January 2013)
5) http://www.atviri.lt/uploads/files/dir88/dir4/11_0.php (access: 27 January 2013).
6) https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage= 2011090&SecMode=1&DocId=702300&Usage=2 (access: 27 January 2013).
7) https://wcd.coe.int/ViewDoc.jsp?id=1606669 (access: 27 January 2013)
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