CASE of BALSYTĖ-LIDEIKIENĖ V. LITHUANIA - Application No

CASE OF BALSYTĖ-LIDEIKIENĖ v. LITHUANIA - Application no. 72596/01 (2009) In the Chamber’s judgment in the CASE OF BALSYTĖ-LIDEIKIENĖ v. LITHUANIA the European Court of Human Rights held, unanimously, that there had been: - a violation of Article 6 § 1 of the Convention - no breach of Article 10 of the Convention I. Principal Facts The Applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national. The case concerned Mrs Balsyte-Lideikiene’s complaint about wrongful examination of her case, thus a violation of her right to a fair trial. The Applicant also complained about a breach of her right to a freedom of expression. The Applicant is the founder and owner of a publishing company “Metskaitliai”. In 2000 a Member of the Lithuanian Parliament distributed a public announcement, stating that the texts published in “Lithuanian calendar 2000” insulted persons of Polish, Russian and Jewish origin. In the same year the Vilnius City Second District Court found, relying mainly on expert opinion, that the Applicant promoted ethnic hatred by distribution of the material and thus a breach of the Code of Administrative Law Offences. The Court imposed on Mrs Balsytė-Lideikienė an administrative fine and ordered confiscation of all copies of “Lithuanian calendar 2000”. The court examined the case in the absence of the Applicant or her lawyer, but according to the court she had been duly informed of the date and place of the hearing. The Applicant appealed and the case was remitted for a fresh examination at first instance. On 13 March 2001 the Vilnius City Second District Court found that by publishing and distributing “Lithuanian calendar 2000” the Applicant acted unlawfully. Mrs Danutė Balsytė-Lideikienė appealed, claiming in particular the violation of Article 10 of the Convention. She also alleged a breach of her defence rights in relation to the experts’ absence. In May 2001 the Supreme Administrative Court reviewed the case and dismissed the appeal. Afterwards, the Applicant applied for political asylum in Switzerland, but after some time returned to Lithuania. II. Complaints and procedure Relying on Article 6 (right to a fair hearing and a fair trial) of the European Convention on Human Rights, Mrs Danutė Balsytė-Lideikienė complained that her case had been examined by the first-instance court in the absence of expert and that the Supreme Administrative Court had not held a hearing on appeal. She also complained that the confiscation of the calendar and the ban on its further distribution was in breach of Article 10 (freedom of expression) of the Convention. III. Decision of the Court The Court emphasizes the importance of the experts’ opinions and the fact that when finding the Applicant guilty, the national courts directly relied on their conclusions and reports and quoted professionals. Thus the opinions provided by the experts had a key place in the proceedings against Mrs Balsyte-Lideikiene. The Court concluded that the Applicant had not been given the opportunity to question the experts in open court in order to subject their credibility to scrutiny or cast any doubt on their conclusions. For these reasons, the Court concluded by six votes to one that there had been a violation of Article 6 of the Convention. However, it found it unnecessary to examine separately the question of the absence of a public hearing before the Supreme Administrative Court. The Court considered that the administrative penalty and the confiscation of the publication had interfered with Mrs Balsyte-Lideikiene's right to freedom of expression. The ECoHR agrees with the Government's submissions that the punishment imposed aimed to protect the values laid out in Article 10 § 2 of the Convention, especially the reputation and rights of the ethnic groups living in Lithuania and referred to in “Lithuanian calendar 2000”. Moreover, the Court highlighted that the issues concerning the territorial integrity and national minorities in Lithuania had been sensitive. The ECHR also paid special attention to the specific language used in “Lithuanian calendar 2000”. Due to the experts a one-sided description of particular nationalities (especially Poles and Jews) and relations between nations “hindered the consolidation of civil society and promote national hatred”. The national courts noted the negative reaction which the publication received from a certain part of Lithuanian society and some foreign embassies. It was reminded that under international law Lithuania had an obligation to prohibit any advocacy of national hatred and to take measures to protect persons who might be subject to such threats as a result of their ethnic identity. The Court concluded that the domestic authorities, in the circumstances of the case, had not overstep their margin of appreciation by considering that there was a pressing social need to take measures against the Mrs Balsyte-Lideikiene. Finally, the Court noted that the confiscation measure imposed on the Applicant could be deemed relatively serious and that the fine was only a warning, which was the mildest administrative punishment available. Furthermore, the Court considered that the interference with the Applicant's right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention. Consequently the Court held that there had not been a breach of this Article. IV. Just satisfaction Mrs Balsyte-Lideikiene was awarded 2,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,645 for costs and expenses..

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