• January 30, 2022
  • 112

A court in Vilnius allowed the diacritical mark in a document. “There is no evidence that non-Lithuanian letters are harmful to the public.”

The European Foundation of Human Rights informs that the District Court of the City of Vilnius issued a decision on January 27, in which it obliged the Vilnius Registry Office to change the surname of a citizen of the Republic of Lithuania from “Mulerskaitė-Vaczynska” to its original form – “Mulerskaitė-Waczyńska”.

This change will result in the issuance of a new copy of the marriage certificate and other official documents. The Foundation notes that this is an example of the practical application of the decision of the Lithuanian Supreme Court from October 2021 on the writing of diacritics. On the other hand, the court adjudicating in this particular case pointed out that taking into account international jurisprudence and contemporary needs, the applicant’s claim was by no means unusual.

The law allows “w”, but “ń” …

In the present case it was established that in 2018 in Lithuania the applicant married a Polish citizen T.A. Waczyński. The spouses currently live and work in Poland. In this case, the applicant requested that her surname be written in its original form with the letter “W” and the diacritical mark “ń”, i.e. in the form used by her husband.

His original surname contains two letters that do not appear in Lithuanian language, therefore the correct spelling of such surname is not possible according to the current legal regulations in Lithuania.

According to the new Act on the spelling of names and surnames, from May 1, the letter “w” will be allowed in the documents of Lithuanian citizens, however, “ń” still remains problematic. The Lithuanian court stated that, observing the jurisprudence of international courts and contemporary needs, the applicant’s claim was not unique or atypical.

An important aspect is the fact that the State Commission for the Lithuanian Language issued an opinion on the matter, stating that although the Lithuanian language does not have the letters “w” and “ń” and therefore they are replaced by “v” and “n”, it is an admissible exception, taking into account the needs of society. This applies when the citizens of the Republic of Lithuania marry the citizens of a foreign country and take their surnames.

The European Foundation of Human Rights (EFHR), which provided the applicant with due legal assistance in the discussed case, is very pleased with the fact that the decision of the Lithuanian Supreme Court from October 2021 concerning the writing of diacritics is being applied in practice.

You can read more about this decision here.

Stand of the Court of Justice of the European Union

The Court of Justice of the European Union stated in its judgments (see judgment of 2 October 2003 in case C-148/02 Garcia Avello; judgment of 22 December 2010 in case C-208/09 Sayn-Wittgenstein, C -208/09; judgment of 12 May 2011 in case C-391/09 Runevič-Vardyn and Wardyn) that a difference in spelling of the same surname for two people of the same married couple could cause serious inconvenience to the parties, both in the public and private sphere.

Discrepancies in the spelling of the surname may raise doubts as to the identity of persons, the authenticity of the documents presented or the authenticity of the data contained therein. If this is the case, it means a restriction of the right granted by article 21 of the Treaty on the Functioning of the European Union (“TFEU”), which guarantees the right to move and reside freely within the territory of the Member States.

A restriction on the freedoms granted by Article 21 TFEU, resulting from the serious disadvantages described above, can be justified if it is based on objective considerations and is proportionate to the legitimate objective pursued (see judgment of 14 October 2008 in case C-353/06 Grunkin and Paul) .

There is no evidence that non-Lithuanian letters are socially harmful

The court adjudicating in the case concluded that the spelling of the applicant’s surname, Mulerskaitė-Waczyńska differently from that of her spouse, undoubtedly causes some inconvenience for the spouses in terms of establishing the identity of all family members, the authenticity of personal documents, confirmation of family correlations, etc.

The court noted that no evidence had been presented to suggest that writing the names and surnames with non-Lithuanian letters would be harmful to the public good. In this case, not deviating from the existing legal framework and denying the request would not be inequitable, as recording her name and the name of her spouse in a different manner would cause inconvenient consequences for the applicant (refusal to change the applicant’s name may lead to inconvenience in the future in the event of possible problems with birth of children, registration of their birth, settlement of property acquired within the joint ownership and / or difficulties with inheritance).

The mission of the European Foundation of Human Rights

The European Foundation of Human Rights (EFHR) provides legal assistance to people affected by the problem of the original spelling of names and surnames in identity documents. Legal assistance is provided by EFHR lawyers and attorneys from well-known law firms cooperating with the Foundation.

Legal assistance includes, among others:

  • legal advice
  • drafting of documents,
  • representation in court.

 

We encourage all interested parties to contact us by e-mail at info@efhr.eu or by phone at +(370) 691 50 822.

 

Translated by Marta Graban within the framework of a traineeship programme of the European Foundation of Human Rights, www.efhr.eu.

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