The Supreme Court of Lithuania inquires a case about the writing of diacritical marks in the records of Civil status documents

The Supreme Court of Lithuania inquired a civil case in which the writing of secondary (diacritical) marks in the records of Civil status documents was brought to matter.

In the inquired case, a citizen of the Republic of Lithuania (the applicant) went to the Republic of Slovenia and married one of its citizens. The citizen of Lithuania chose the surname of her spouse in which one of the letters has the diacritical mark “ć”. The applicant made a request to the Civil Registry Office located in Panevėžys Municipality to register into accounting her marriage abroad and change her surname to a new one. Unfortunately, the Civil Registry Office of the Panevėžys Municipality Administration refused to comply with the request, stating that the chosen surname could not be entered due to the letters with diacritical marks not being available in keyboards.

The applicant made a request to the Court for the refusal to be revoked. Further, the Lithuanian citizen appealed to the Civil Registry Office of the Panevėžys City Municipality Administration to issue a record of the marriage with her desired surname. The claim was upheld by the Court of First Instance that inquired the applicant’s case. The Court of Appeal did not change the decision of the Court of First Instance.

The State Enterprise Center of Registers filed a cassation appeal to the Supreme Court of Lithuania stating as reason the claim that the name of a citizen in personal documents must be written in the official language of the state, in Lithuanian characters corresponding to the common pronunciation of the Lithuanian language. If the document is issued by a foreign state, it must be rewritten according to the pronunciation that is closest the Lithuanian language by giving it a Lithuanian grammatical form. Personal names of citizens from other states in official documents must be transcribed letter by letter, in Latin characters without diacritical marks.

The judicial panel of the Supreme Court of Lithuania noted that although the rules for registration of Civil status documents detail how the records of Civil status documents are made when registering or entering into accounting Lithuanian citizens or those of foreign states, persons and their children without citizenship with their Civil status documents, respectively, unfortunately these documents do not specify how the surname of a citizen of the Republic of Lithuania who has married a citizen of a foreign state and chosen the surname of her spouse, should be recorded. Even though the surname of the citizen of the Republic of Lithuania is written in the records of Civil status documents, the choice of the surname of her spouse (foreign citizen) means that his surname must be entered into the marriage record. That is why in cases like this one, the same rules as the ones used for registration of Civil status documents when registering or entering into accounting Lithuanian citizens or those of foreign states, persons and their children without citizenship, are applied.

The Court of Cassation stated that Point 23 of the rules for the registration of Civil status documents does not prohibit the writing of a surname in Latin characters with diacritical marks, but only gives the authorities registering Civil status documents the right not to do so in the absence of technical possibilities. The rules do not define cases when there is a lack of technical possibilities, nor do they provide criteria for the definition for such cases or a list of their examples. However, the analysis of the legal norm of the right does not provide ground to conclude that any diacritical mark that is not utilized in the Lithuanian alphabet, should automatically be considered as a diacritical mark that is technically impossible to transcribe. The Court of Cassation ruled that the right granted to the authorities registering Civil status documents to refuse to make a record of a Civil status document without a diacritical mark technically impossible to transcribe, is to be regarded as a legal norm restricting the rights of a person, therefore it must be explained in a brief manner. If the institution registering a Civil status document relies on the fact that the name and / or surname cannot be rewritten in Latin characters from an identity document or a corresponding document that has diacritical marks and is issued by an institution of a foreign state, as they cannot be technically transcribed, these circumstances shall be proven if a conflict arises.

In the present case the interested parties stated that although it was not technically possible to transcribe the letters of the dispute with a diacritical mark, after legalization of the order of the Court of Appeal, they complied with the judgment of the Court of First Instance by amending the Civil status document. This circumstance confirms that, such an entry is possible, even with additional administrative or organizational effort. The interested parties involved in the case did not provide any evidence that these efforts would lead to highly disproportionate costs.

A person’s name and surname is an integral part of their identity and privacy, which is protected by Article 7 of the Charter of Fundamental Freedoms of the European Union and Article 8 of the Convention. Even though there is no explicit reference in Article 8 of the Convention to the protection of the name and surname, a person’s surname is undoubtedly linked to their private and family life, as it is a means of identifying a person and their link with a particular family. The European Court of Human Rights also supports these statements (see judgment of the ECHR of 22 February 1994 of Burghartz v. Switzerland, petition 16213/90, point 24; judgment of 24 October 1996 of Guillot v. France, petition 22500/93); judgment of 27 April 2000 of Bijleveld v. The Netherlands, petition 42973/98, point 3; judgment of 5 December 2013 of Henry Kismoun v. France, petition 32265/10) and Court of Justice of the European Union (see judgement of the CJEU of Sayn-Wittgenstein of 22 December 2010, case C-208/09, point 52; judgement of 12 May 2011 of Runevič-Vardyn and Wardyn, case C-391/09, point 66; judgment of 2 June 2016 of Bogendorff von Wolffersdorff, case C-438/14, point 35).

The issue of the spelling of foreign names and surnames has been examined by the CJEU in the context of Article 21 TFEU. Article 21 (1) TFEU states that every citizen of the European Union has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. The CJEU has stated that a person who is a citizen of at least one Member State has the status of citizenship of the European Union and may therefore invoke the rights conferred on persons with such status, in particular the right to move and reside freely within the territory of the Member States by Article 21 TFEU (see judgement of CJEU of 10 July 2008 of Jipa, judgement of McCarthy of 5 May 2011, case C-434/09, points 47-48 and the practice described within them). In addition, national measures which deprive citizens of the European Union of the effective use of the fundamental rights conferred by that status are prohibited (see the judgment of the CJEU of Ruiz Zambrano of 8 March 2011, case C-34/09, point 42).

The Court of Cassation, that supports the practice of the Court of Justice of the European Union (CJEU), has also ruled that the absence of technical possibilities is not a legitimate basis for justifying restrictions on the free movement of persons imposed by national rules. The Court of Cassation declared the arguments of the Cassation Appeal of the State Enterprise Center of Registers were unfounded. The Courts hearing the case had selectively applied the criteria for restricting the principle of free movement of persons established by Article 21 of the Treaty on the Functioning of the European Union. In the inquired case, the Court of First Instance ruled that the refusal to change the applicant’s surname and to issue a marriage record with the applicant’s chosen surname of her spouse caused the applicant administrative, personal and professional inconveniences in changing her personal documents, such as proving identity of the applicant and different names of her family members, that would have significant negative consequences for the applicant. In addition, the Court found that the prohibition of entering a surname in non-Lithuanian characters is disproportionate to the inconveniences that the applicant would go through living outside of Lithuania as a result of her Lithuanian surname; the Court did not find that the writing of a non-Lithuanian character in the surname chosen by the applicant after the marriage could infringe the rules on the use of the official language of the state to such an extent as to harm the public interest. The Court pointed out that there are enough letters with diacritical marks in Lithuanian language itself, therefore it is not right to say that the diacritical mark of the dispute is very far from Lithuanian language for it to be not to be entered into the document as requested by the applicant. The Court of Appeal upheld the findings of the Court of First Instance. Thus, the content of the proceedings of the Courts that inquired the case, confirms that the Courts assessed and determined the circumstance whether the refusal of the interested party to change the applicant’s surname and to issue a marriage certificate with the chosen surname of her spouse could cause serious administrative, professional and personal inconveniences and whether the waiver is necessary to protect the interests protected by national legislation and is proportionate to the legitimate aim pursued. Therefore, there is no ground to conclude that the Courts have applied the criteria selectively for restricting the principle of free movement of persons enshrined in the case law of the ECJ in Article 21 TFEU.

The Court of Cassation noted that, although the rules governing the entry of a person’s name and surname in Civil status documents fall within the competence of the Member States, they must comply with EU law and, in particular, the Treaty provisions on freedom of movement and residence within the territory of the Member States (see the judgment of the CJEU of 2 October 2003 of Garcia Avello, case C-148/02, point 25, and judgement of Grunkin and Paul of 14 October 2008, case C-353/06, point 16; judgement of Sayn-Wittgenstein of 22 December 2010, case C-208/09, points 38, 39; judgement of Runevič-Vardyn ir Wardyn of 12 May 2011, case C-391/09, point 63). Although EU Member States have a wide margin of discretion in the spelling of names and surnames, it is highly significant for this discretion not to cause any serious administrative, professional and personal inconveniences to persons and disproportionately restrict the right of EU citizens to move and reside freely in all Member States.

/Translated by Monika Ivanavičiūtė within the framework of a traineeship programme of the European Foundation of Human Rights/