Right to Freedom of Expression, Association and Religion

VI. Freedom of Assembly

The right of persons to freedom of peaceful assembly is contained in Article 36(1) of the Constitution. Despite the fact that the right to freedom of assembly is exercised through notification of intent, its exercise fails to be realized properly in Lithuania, owing especially to disproportionate and unfounded restrictions placed on the choice of venue for assembly.

"Freedom of assembly is the right of citizens to participate in peaceful gatherings to freely express their views and opinions, guaranteeing the expression of personal civic engagement in society and the state. The fact that this right is enshrined in the Constitution means that it is considered to be one of the fundamental human rights and values in a democratic society – an inherent symptom of democratic order. Freedom of assembly is an important guarantee to the proper exercise of other constitutional rights and freedoms: the right to participate in governing one's own country, the right to criticise the work of state institutions or officials, the human right to hold one's own beliefs and to freely express them, the right to search for, to receive and to disseminate information and ideas."[1]

The Law on Assembly provides that the right to assembly is to be exercised through notification of intent,[2] not a request for permission. This sort of regulation means that the organizers are given the right to choose the venue, time, purpose and form of the assembly without having to ask for permission first, simply by notifying the municipality of the planned assembly. This position on the exercise of freedom of assembly through notification of intent has been recognized not only by the Constitutional Court,[3] but also by both the general[4] and specialized courts.[5]    

Regardless of how unacceptable the ideas aired at the assembly would be, the right to freedom of speech and expression, as well as ensuring the presence of pluralism, are virtues that the state has a duty to protect and help realize through its actions. Any measures to restrict the freedom of assembly pose a threat to democracy and are incompatible with the European Convention on Human Rights, except where the Convention provides for exceptions.[6] 

Still, despite the fact that the right to freedom of assembly is exercised through notification of intent, there were cases in 2013-2014 of municipalities abusing their powers and violating the Law on Assembly. The fundamental problems to the exercise of the right to freedom of peaceful assembly observed during the evaluation period pertained to the organizers' effective freedom to choose the place for assemblies and to disproportionate and unfounded refusals by municipalities to coordinate locations and times for assemblies. 

"In ensuring democratic pluralism, the state has positive obligations to secure the effective enjoyment of the right to freedom of assembly for persons holding unpopular views or belonging to minorities <...>; the vital aspect of the effective exercise of the freedom of assembly is the presumption of legality, which is denied when official authorization is refused for the assembly, thus discouraging minorities from participating <...> and these negative effects on the freedom of assembly cannot be avoided if the remedies in respect of this freedom are only available after the planned date of the assembly."[26]

In interpreting the scope of the right to freedom of assembly, the European Court of Human Rights stressed that the freedom of assembly covers the right to choose the time, place and modalities of the assembly.[7] The Constitutional Court, in interpreting the right to choose the place, time, purpose and method of assembly, further stated that should these rights not exist, the freedom of assembly itself would have no meaning.[8] The case law of the Lithuanian Supreme Administrative Court also recognizes that a municipal decision to unilaterally change the place of the assembly to somewhere other than what was indicated in the application would be unlawful.[9] 

Baltic Pride 2013, Vilnius, Lrt.lt photo

The various examples on record provide ample evidence that there are obstacles to enjoying the right to choose the place of an assembly in Lithuania. On 16 January 2013, instead of the venue chosen by the Lithuanian Gay League for its assembly, the Vilnius City Municipality designated a different place without obtaining agreement from the organizer.[10] When the Lithuanian Gay League appealed against these unilateral actions, the court annulled the municipality's decision and ordered it to come to an agreement regarding the place of the assembly.[11] The Supreme Administrative Court of Lithuania rejected the appeal of the municipality, drawing attention to the fact that the exercise of the right to peaceful assembly must be guaranteed without discrimination on the grounds of sexual orientation or gender identity.[12] 

In October 2014, the Kaunas City Municipality considered whether to "evict" the organized rally against NATO from Unity Square (lt. Vienybės aikštė) to Nemunas Island.[13] 

The Law on Assembly provides that on national holidays[14] state and municipal authorities are given priority when choosing the time and place of events.[15] With reference to this provision, the Vilnius City Municipality in 2013 refused to coordinate with the Lithuanian National Youth Union, which was planning to march down Gediminas Avenue on March 11, the place and time of this proposed assembly. However, despite the fact that the Vilnius Regional Administrative Court confirmed the lawfulness of the refusal, the organizers managed to carry out the procession in the place they had planned for originally (i.e. Gediminas Av.) – furthermore, were not prosecuted in any way for this violation of the Law on Assembly. This demonstrates the apathy of the Vilnius City Municipality in dealing with law violations, as well as the fact that it is not properly carrying out its duties. 

Both the legislation and the case law establish that the freedom of assembly may only be restricted by law, in cases where such restrictions serve a legitimate purpose (state or public security, public order, public health or morals or the rights and freedoms of others) and are proportionate and necessary in a democratic society.[16]   

Practices observed during 2013-2014 make clear that cases exist where municipalities unjustifiably restrict the exercise of the right to assembly by solely relying on the formal grounds specified in the Law on Assembly, without observing the necessary preconditions to the legitimacy of their actions.  

For example, after the Supreme Administrative Court of Lithuania ordered the Vilnius City Municipality to once again coordinate with the Lithuanian Gay League regarding the place of the latter's proposed "For Equality" march, the municipality refused to do so not just with regard to the place of the march, but also to its time and form.[17] This time the municipality based its decision on the fact that marching down Gediminas Avenue would not comply with the requirements set out in the Law – namely, to keep a certain distance away from state institutions and Lithuanian court buildings.[18] 

The 5 July 2013 judgment of the Vilnius Regional Administrative Court annulled this decision of the Vilnius City Municipality, declaring it unlawful due to non-compliance with the principle of proportionality.[19] In its judgment, the court pointed out that the planned assembly was to take place on a non-working day, when the courts and other state institutions located in Gediminas Avenue would not be open, that the planned assembly was not related to the activities of these institutions; as such, even if there are formal grounds prescribed by the law, there is no need to apply them in this particular case and doing so would indeed be disproportionate. 

"Freedom of assembly is the right of citizens to participate in peaceful gatherings to freely express their views and opinions, guaranteeing the expression of personal civic engagement in society and the state. The fact that this right is enshrined in the Constitution means that it is considered to be one of the fundamental human rights and values in a democratic society – an inherent symptom of democratic order. Freedom of assembly is an important guarantee to the proper exercise of other constitutional rights and freedoms: the right to participate in governing one's own country, the right to criticize the work of state institutions or officials, the human right to hold one's own beliefs and to freely express them, the right to search for, to receive and to disseminate information and ideas."

The Supreme Administrative Court of Lithuania left the decision of the court of first instance unchanged and obliged the Vilnius City Municipality to finally coordinate the place and time of the planned assembly in the manner chosen by the organizer.[20] 

The Constitution provides that the right to peaceful assembly may only be restricted in circumstances prescribed by the law and only for the purposes of protecting state or public security, public order, public health or morality or the rights and liberties of others.[21] As such, the Constitution leaves it to the legislature to specify the circumstances in which the freedom of assembly may be restricted when the aforementioned grounds are present.  

It should be noted that the new edition of the Law on Assembly, adopted at the end of 2012, does not provide for the power of municipalities to refuse coordinating a planned assembly or issuing an assembly certificate on the above grounds listed in the Constitution. In other words, the law abolished the power of municipalities to refuse issuing assembly certificates in cases where the organization of the assembly could possibly prejudice state or public security, public order, public health or morality or the rights and liberties of others. 

The current regulations contain no provisions for a preliminary control mechanism for the exercise of the freedom of assembly. This means that authorities may only refuse to coordinate the time and place of a planned assembly in the event of non-compliance with the time and place requirements set out in the law[22]; when another assembly will already be happening at the exact same time and place[23]; or when priority is given to state and municipal institutions with regard to the time and place of events happening on national holidays, and only in cases where applying the aforementioned grounds would serve a legitimate purpose and, on the facts, be proportionate[24]

Only assemblies already taking place may be interrupted on the grounds specified in the Constitution.[25] However, it should be noted that in order to lawfully interrupt an assembly taking place, the prohibited actions must be carried out by the participants of the assembly and not by third parties. The actions of third parties (not the participants of the assembly) by themselves cannot justify a restriction of the freedom of peaceful assembly. 

It should also be noted that, according to the case law, even when a factual threat to the state or the public can be demonstrated that in and of itself is not a sufficient reason to interrupt or ban the assembly. In such cases the state has a positive obligation to take all the necessary steps to control and remove the threat so that every person is able to exercise his or her right to peaceful assembly. 

Still, the practices observed during the evaluation period made clear that, when applying the Law on Assembly, the administration of municipalities will be acting in excess of its authority should it rely on formal grounds set out in the Law and an alleged need to protect state and public security, public order, public health and morality or the rights and liberties of other to refuse to coordinate with regard to the time and place of the planned assembly, or when it designates a different meeting place. 

In ensuring democratic pluralism, the state has positive obligations to secure the effective enjoyment of the right to freedom of assembly for persons holding unpopular views or belonging to minorities<...>; the vital aspect of the effective exercise of the freedom of assembly is the presumption of legality, which is denied when official authorization is refused for the assembly, thus discouraging minorities from participating <...> and these negative effects on the freedom of assembly cannot be avoided if the remedies in respect of this freedom are only available after the planned date of the assembly.[26] 

Findings and Recommendations 

  • The freedom to peaceful assembly includes the right to choose the time, place, purpose and form of the assembly. This freedom is inseparable from the aforementioned constituent parts or rights, which form an integral part to it, i.e. the violation or limitation of any right of freedom of assembly (or any of its constituent elements) violates the freedom itself.
  • Each assembly of which the municipality had been properly notified must take place without any further restrictions. When relying on any of the grounds for limiting the freedom of the organizers to choose the time and place of the assembly set out in the Law on Assembly, the reliance must not be perfunctory and instead assess whether the restriction would serve a legitimate purpose and whether it would satisfy the requirement of proportionality.
  • If the place chosen by the organizers does not contravene any of the requirements set out in the Law, the municipality may not designate a different place for the assembly on its own initiative. This means that if any of the grounds set out in the Law on Assembly are interfering with the coordination of the place of the planned assembly, the entity of public administration (municipality) should coordinate with the organizers of the assembly to agree on a new place for assembly, as opposed to designating the place of assembly on its own.
  • If it is possible to demonstrate a threat to state or public security based on facts (as opposed to assumptions), or if any other grounds for restricting the freedom of assembly set out in the Constitution are present, only a court judgment and not an administrative act originating from an entity of public administration may prohibit an assembly from taking place. The law does not grant entities of public administration the power to restrict the exercise of the freedom of assembly on the above grounds. 

[1] 7 January 2000 decision of the Constitutional Court in case No. 11/99

[2] Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[3] 7 January 2000 decision of the Constitutional Court in case No. 11/99

[4] 30 October 2006 ruling of the Supreme Court of Lithuania in civil case No. 3K-3-539/2006

[5] 20 June 2013 ruling of the Supreme Administrative Court of Lithuania in administrative proceedings No. A444-1968/2013

[6] 10 July 2012 ECtHR judgment in the case of Berladir and others v Russia, application No.  34202/06

[7] 27 November 2012 ECtHR judgment in the case of Sáska v Hungary, application No.  58050/08

[8] 7 January 2000 decision of the Constitutional Court in case No. 11/99

[9] 19 January 2012 ruling of the Supreme Administrative Court of Lithuania in administrative proceedings No.  A63-261-12/2012 

[10] Order No. A30-51 of the director of the Vilnius City Municipality Administration "On the procession organized by the Lithuanian Gay League", dated 18 January 2013

[11] 11 April 2013 judgment of the Vilnius Regional Administrative Court in administrative proceedings No. I-2457-208/2013

[12] 20 June 2013 ruling of the Supreme Administrative Court of Lithuania in administrative proceedings No. A444-1968/2013 

[13] Paulius Garkauskas, "Kaunas Municipality Allows Demonstration Against NATO", delfi.lt, 17 January 2014, http://www.delfi.lt/archive/article.php?id=66141352

[14] On the 16th of February - Day of the Restoration of Lithuania's Independence, 11th of March - Day of the Restoration of Lithuania's Independence and on the 6th of July - Statehood (the Crowning of King Mindaugas) Day

[15] Article 7(6) of Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[16] 4 April 2011 ruling of the Supreme Court of Lithuania in civil proceedings No. 3K-3-144/201.

[17] 20 June 2013 ruling of the Supreme Administrative Court of Lithuania in administrative proceedings No. A444-1968/2013

[18] Article 4(3) of Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[19] 5 July 2013 judgment of the Vilnius Regional Administrative Court in administrative proceedings No. I-4265-561/2013

[20] 23 July 2013 ruling of the Supreme Administrative Court of Lithuania in administrative proceedings No.  A858-2475/2013.

[21] Article 36(2) of the Constitution, ed. 25 October 1992, http://www3.lrs.lt/home/Konstitucija/Konstitucija.htm

[22] Article 4 of Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[23] Article 7(5) of Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[24] Article 7(6) of Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[25] Articles 5 and 9 of Law Amending the Law on Assembly, 8 November 2012, No. XI-2385, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=437367&p_tr2=2

[26] 3 May 2007 ECtHR judgment in the case of Bączkowski and others v Poland; application No. 1543/06