THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 72596/01
by Danutė BALSYTĖ-LIDEIKIENĖ
against Lithuania
The European Court of Human Rights (Third Section), sitting
on 24 November 2005 as a Chamber composed of:
MrB.M. Zupančič, President,
MrL. Caflisch,
MrC. Bîrsan,
MrJ. Hedigan,
MrsR. Jaeger,
MrE. Myjer,
MrDavid Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 23 May 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national, who was born in 1947. At present she lives in Geneva, Switzerland. She is represented before the Court by Mr F. Ruhlmann, a lawyer practising in Strasbourg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the founder and owner of a publishing company ‘Metskaitliai’. Since 1995 the company has published ‘Lietuvio kalendorius’ (‘Lithuanian calendar’), a yearly calendar with notes by the applicant and other persons describing various historic dates from the perspective of its authors. The calendar could be purchased in bookstores. It was distributed in Lithuania and among Lithuanian immigrants living abroad.
On 4 January 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in the ‘Lithuanian calendar 2000’ insulted the persons of Polish, Russian and Jewish origin.
On 10 January 2000 a Seimas committee requested the Office of the Prosecutor General to investigate whether the publication was compatible with the Lithuanian Constitution and other legal acts.
On 12 January 2000 the Prime Minister wrote a letter to the State Security Department, requesting it to examine whether “the contents of ‘Lithuanian calendar 2000’ contained the elements of violations of ethnic and racial equality”.
On the same date the Lithuanian foreign Ministry also received a note from the Russian Embassy, expressing its dissatisfaction with the publication’s map describing certain territories of the Russian Federation as “ethnic Lithuanian lands under temporary occupation” (also see below).
On 13 January 2000 a similar note was received from the Embassy of Belarus.
On 14 January 2000 the State Security Department requested Vilnius University to submit an expert opinion as to whether ‘Lithuanian’s calendar 2000’ promoted ethnic, racial or religious hostility. In this regard the security intelligence authorities requested the experts to examine whether ‘Lithuanian calendar 2000’ contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups.
On 20 January 2000 two experts, history and political science professors of the Vilnius University, found that ‘Lithuanian’s calendar 2000’ expressed the extreme nationalist ideology of its creators, containing xenophobic and offending assertions in regard to the people of Jewish and Polish origins in particular. It was found in a map published in ‘Lithuanian calendar 2000’ that certain territories of Belarus, Poland and Russia were marked as “ethnic Lithuanian lands under temporary occupation”. The experts concluded that ‘Lithuanian calendar 2000’ contained anti-Semitic and anti-Polish assertions, and declarations of the superiority of Lithuanians vis-à-vis other ethnic groups.
At the end of January 2000 the security intelligence authorities seized a number of copies of ‘Lithuanian calendar 2000’ in various bookstores in Lithuania. The distribution of the publication was stopped.
By a letter of 31 January 2000 the Prosecutor General informed the Prime Minister that, following the examination of the contents of ‘Lithuanian calendar 2000’, no elements of a criminal offence (instigation of ethnic or racial hatred) had been found in the applicant’s releasing of the publication. However, the Prosecutor General held that in this respect the applicant should have been punished by way of the administrative procedure pursuant to Article 214-12 of the Code of Administrative Offences (Production, storage and distribution of information materials promoting ethnic, racial or religious hostility). He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision. The Prosecutor General also informed the Prime Minister that the distribution of the edition had been suspended pending the determination of the case by a court.
On 28 June 2000 a judge of the Vilnius City Second District Court found that the applicant had produced 3,000 versions of ‘Lithuanian calendar 2000’, 588 of which had been sold. By reference mostly to the expert conclusion of 20 January 2000, the court held that the applicant thereby intended to distribute the material promoting ethnic hostility in breach of Article 214-12 of the Code of Administrative Offences. The Court imposed on the applicant an administrative penalty in the amount of 1,000 Lithuanian litai (LTL) and ordered confiscation of all copies of ‘Lithuanian calendar 2000’ seized in the bookstores.
The court examined the case in the absence of the applicant or a lawyer. It was noted however that she had been duly informed of the date and place of the hearing, but that she had submitted no request to postpone the examination or an explanation of the reasons of her absence. It was further noted that the applicant had enough time and opportunities to find herself a lawyer, but that she had not availed herself of the opportunity to find any legal representation. The court concluded therefore that the case could be examined without the applicant being present. A representative of the security intelligence authorities and the two experts of the Vilnius University were questioned during the hearing.
The applicant appealed, claiming in particular a violation of Article 10 of the Convention. She also complained that the trial had taken place in absentia.
On 16 August 2000 the Vilnius Regional Court quashed the first instance judgment on the ground that the applicant had been in a hospital
from 27 June to 3 July 2000, and that thus she could have not taken part in the first instance hearing. The case was remitted for a fresh examination at first instance.
On 28 September 2000 a judge of the Vilnius City Second District Court ordered another expert examination to be carried out. The court requested the Vilnius University to constitute commissions of experts representing various fields of social science in order to produce an opinion whether ‘Lithuanian calendar 2000’ promoted ethnic, racial or religious hostility, whether it contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups.
In reply to the court’s decision, four separate expert opinions were produced, reflecting the point of view of Vilnius University professors specialising in the following fields: history, psychology, political science and library science.
On 13 March 2001 the judge of the Vilnius City Second District Court found that the applicant had breached Article 214-12 of the Code of Administrative Offences in producing and distributing ‘Lithuanian calendar 2000’. She had imposed upon her a penalty of administrative warning, while 1,036 copies of the edition and the means to produce it were confiscated.
By reference to the conclusions of the experts in the field of political science, the court stated that the applicant’s actions in producing and distributing the edition promoted ethnic hostility. It was also noted that the edition had caused negative reactions from official representatives of some neighbouring States, including Poland, Belarus and Russia, who had complained about the map denoting some of the territories of those countries as “ethnic Lithuanian lands under temporary occupation”.
By reference to the conclusions of the experts in the field of history and psychology, the court held that the applicant’s actions were not deliberate, but that they were reckless. The court noted that the psychological expert opinion stated that ‘Lithuanian calendar 2000’ represented the individual character and values of the applicant rather than disclosed a promotion of hostility between Lithuanians and other ethnic groups. The court held however that that conclusion of the psychologists only confirmed that the offence committed by the applicant was not deliberate, but it did not deny the fact that the assertions of the applicant in ‘Lithuanian calendar 2000’ had been prohibited by Article 214-12 of the Code of Administrative Offences.
The court emphasised that the breach of the administrative law committed by the applicant was not serious, that it did not cause significant harm to the interests of the society. The court also noted the applicant’s physical sickness and the absence of previous convictions.
In view of those circumstances and given the negligent nature of the offence, the court decided to impose a penalty - administrative
warning - milder than the one required by Article 214-12 (a fine from LTL 1,000 to LTL 10,000).
The case was examined in the presence of the applicant and a representative of the security intelligence authorities. The applicant left the hearing in the course thereof.
The applicant appealed, claiming in particular that Article 10 of the Convention had been violated. She also complained that the court did not call the experts of the Vilnius University, thereby breaching her defence rights.
On 4 May 2001 the Supreme Administrative Court rejected the applicant’s appeal as unsubstantiated without hearing the parties. The parties had been allowed to formulate their arguments by way of written procedure. The court established no procedural breaches during the proceedings, finding that on 13 March 2001 the applicant had been able to state her case, but that she had left the hearing voluntarily. It was also established that the first instance court was not required by the relevant procedural provisions to examine the experts at the trial.
On an unspecified date the applicant left Lithuania. It appears that she has now applied for political asylum in Switzerland.
B. Relevant domestic law and practice
1. Administrative and criminal penalties
The Code of Administrative Offences (CAO) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law (Criminal Code).
Article 72 § 1 of the Criminal Code (applicable at the material time) punished the acts of instigation of ethnic or racial hatred with a sentence of up to two years’ imprisonment or a fine.
Article 214-12 of the CAO punishes the acts of production, storage and distribution of information materials promoting ethnic, racial or religious hostility with a fine from LTL 1,000 to LTL 10,000.
An administrative warning is a penalty under the CAO which can be used to replace a harsher penalty required by the Code for that offence; the warning is intended to serve also as a preventive measure, similarly as a suspended sentence in criminal law.
2. Administrative procedure
Article 256 of the CAO provides that an expert conclusion can be considered as evidence. Pursuant to Article 277, an expert can be appointed when special knowledge is required for resolving the case.
Under Article 53 of the Code, the parties have equal procedural rights. Among other procedural rights, the parties are entitled to ask questions from other participants of the process, including witnesses and experts.
Pursuant to Article 137 § 2 of the Code of Administrative Procedure (CAP), appeals in cases concerning a breach of the CAO are determined as a rule by way of the written procedure, unless the judges decide otherwise in the circumstances of a particular case.
COMPLAINTS
1. Under Article 6 of the Convention the applicant complained that her case had been examined by the first instance court without calling the experts, despite the experts’ conclusions being crucial to the determination of the merits of the case. Thereafter she had been unable to state her case before the Supreme Administrative Court as it had held no hearing on appeal. In these circumstances the proceedings had been unfair.
2. Under Articles 9, 10 and 14 of the Convention the applicant complained that she had been unjustly punished for the expression of her beliefs in ‘Lithuanian calendar 2000’.
THE LAW
1. The applicant alleged a breach of Article 6 of the Convention, which provides, insofar as relevant, as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... .
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... .”
The Government stated first that Article 6 did not apply in the present case in view of the public-law nature of the dispute. The applicant had moreover been precluded from complaining about the lack of fairness in that she had voluntarily left the first instance hearing before its closing. In any event, even assuming that Article 6 applied under its “civil” heading, there had been no need for the domestic courts to call and examine witnesses or experts at a hearing. The applicant had been afforded the right to challenge the expert conclusions in the case by way of the possibility to submit written arguments and her subsequent appeal, there having been no breach of the adversarial nature of the proceedings. Furthermore, there was no domestic requirement for the Supreme Administrative Court to hold a hearing on appeal, the parties’ written arguments and the expert conclusions being a sufficient basis to rule on the merits of the applicant’s appeal by way of the written procedure. In sum, there had been no breach of Article 6 of the Convention.
The applicant disagreed, emphasising that the expert conclusions had been crucial to the determination of the merits of the dispute, the experts effectively being the only witnesses in the case. In view in particular of some of the expert conclusions being controversial, the domestic courts should have examined the experts at a hearing. However, the courts ruled without having called the experts or having permitted the applicant to question them in open court. Thereafter the applicant had been unable to properly state her case before the Supreme Administrative Court as it had held no hearing on appeal. In these circumstances, the proceedings had been in breach of Article 6 of the Convention.
In view of the parties’ submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant further alleged a breach of Article 10 of the Convention, which states as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government stated that the interference with the applicant’s rights under Article 10 of the Convention had been justified by the necessity to protect the democratic values on the basis of which the Lithuanian society was based. In particular, by publishing ‘Lithuanian calendar 2000’, the applicant had disseminated information promoting racial and ethnic hatred. By withdrawing the publication from distribution and imposing an administrative fine on the applicant, the authorities sought to prevent the spreading of ideas which might violate the rights of ethnic minorities living in Lithuania as well as endanger Lithuania’s relations with its neighbouring countries. In view of the clear threat to these legitimate interests posed by the publication, as well as the minor nature of the fine ordered against the applicant, the Government considered that the interference had been compatible with the second paragraph of Article 10 of the Convention.
The applicant argued that the interference with her freedom of expression had been disproportionate within the meaning of Article 10 § 2 of the Convention in view of the minor threat posed by the publication to the interests of the Lithuanian State or any ethnic groups living in Lithuania or the neighbouring countries. In this connection the applicant emphasised that ‘Lithuanian calendar’ had been edited and distributed by her since 1995 in very limited numbers, attracting no great attention in society or discussions in the media. Similarly, the edition of ‘Lithuanian calendar 2000’ had been released in a very limited version of 3,000 in the second half of the year 1999, causing no significant attention or exaggerated reactions in the press up until the State’s authorities intervention in January 2000. The applicant also relied on the fact that the publication had involved mainly the expression of her opinions on and evaluation of various historical events, the authorities being obliged to tolerate the expression of opinions relating to the past rather than the present. However, the State had presented no evidence proving the necessity for such a serious interference. In this regard the applicant drew the Court’s attention to the fact that as a result of the proceedings she had not only had imposed upon her an administrative penalty of warning, but had also lost the main source of her income in view of the confiscation and destruction of all the unsold items of ‘Lithuanian calendar 2000’ and the resultant inability to pursue her activities of editing the publication she had created. The applicant further submitted that the authorities may have pursued other means than halting the distribution of the calendar, such as giving her a possibility to make certain rectifications or announcements, if necessary, on the cover of the remaining, unsold, versions of the publication. Finally, the domestic courts’ finding of the lack of intent on the part of the applicant was also to be taken into account to discard the argument that the interference had been necessary in a democratic society. In sum, there had been a violation of Article 10 of the Convention.
In view of the parties’ submissions under Article 10 of the Convention, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
3. To the extent that the applicant has raised the same complaint about the withdrawal from distribution of ‘Lithuanian calendar 2000’ and her subsequent administrative punishment under Article 9 of the Convention, which guarantees freedom of thought and conscience, the Court notes that it has decided to examine the merits of the applicant’s complaint in this respect under Article 10 of the Convention, which is a lex specialis with regard to a grievance about an interference with the expression of one’s beliefs by way of spreading information. There is nothing in the applicant’s complaints to warrant a separate examination of this part of the application also under Article 9 of the Convention. The applicant’s complaints must therefore be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention to the extent that they have been brought under Article 9 thereof.
4. To the extent that the applicant has also relied on Article 14 of the Convention, which prohibits discrimination, the Court notes that the impugned interference with the applicant’s rights under Article 10 of the Convention, namely the withdrawal from distribution of ‘Lithuanian calendar 2000’ and the subsequent administrative proceedings against her, amounted to individualised punishment for the applicant’s particular actions in editing and releasing the publication, the applicant having not been reprimanded on the basis of any “status” such as her sex or ethnic origin, or her belonging to any group of persons within the meaning Article 14 of the Convention. It follows that the applicant’s complaints under Article 14 are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 thereof, and that they should be rejected under Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 6 and 10 of the Convention;
Declares inadmissible the remainder of the application.
Vincent Berger Boštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy