On 19 April 2016, the Administrative Court of Vilnius District held a public hearing in the case initiated by the Užupis, Žvėrynas and Old Town communities of Vilnius against the Department of Cultural Heritage and the Ministry of Culture. The claimants were drawing on the violation of the right to information about the Vilnius Old Town Real Estate Heritage Protection (Management) Plan (further—Vilnius Old Town Protection Plan)—a document that has been under development at the time.
According to the aforementioned communities, this document is not able to effectively ensure the protection of Vilnius Old Town and moreover, it allows for the illegal constructions in the area. Unfortunately, because the Department of Cultural Heritage failed to carry out its obligation to provide relevant information on time, the communities were excluded from the discussion about the plans that pertain to their living environment.
According to the claimants, their aim is to draw public attention to a much larger problem—a persistent institutional habit to trample people’s right to information, which includes failing to effectively ensure this right.
After realising that the majority of public inquiries into the work of institutions end up dealing with the same problem of access of information, the communities decided to draw on the Aarhus Convention—an international law that regulates the public right to information about the environment. Unfortunately, Lithuanian institutions are still reluctant to comply with it. There is a hope, however, that a positive outcome of the case will change this situation.
More on Aarhus Convention and on the new developments in the Vilnius Old Town heritage area: here.
We asked an Užupis Community Administrator and a lawyer Rėda Brandišauskienė, who also initiated the legal complaint, to comment on the court hearing:
As a lawyer I would like to abstain from impressions because impressions are often misleading and they rarely go in accord with the verdicts. I think we were doing quite fine because we rather successfully presented all our arguments as planned. I think the board was attentive. It seemed that all three judges were listening to us and were active—they were asking questions and were following the hearing process, which is not common in Lithuanian court system.
According to Brandišauskienė, during the court hearing, the Department of Cultural Heritage was rather passive and its representative Arūnas Umbrasas did not present any substantial arguments. “Moreover,” claimed Brandišauskienė, “we witnessed a typical example of a corrupt functionary who does not support his institution and who remains disinterested. They had no passion at all, while we had lots of it. Perhaps, they knew that their institution was wrong.”
Besides Brandišauskienė, other claimants that participated in the hearing were Jūratė Markevičienė (Aarhus Convention expert and cultural heritage specialist), an activist Asta Baškauskaitė who expressed her civic position boldly and clearly, and Sakalas Gorodeckis who represented Vilnius Community Association.
Brandišauskienė regretted that Human Rights Association was not invited as a third party in the case, even though the representative of the Association was present during the hearing. The decision not to include the Association was motivated by saying that the present case had no relevance to the human rights issue. However, according to Brandišauskienė, their presence would have been extremely important because the right to information is one of the fundamental human rights.
Aarhus Convention is “No Legal Act” for the Department of Cultural Heritage!
Whenever the question pertains to the environment, Aarhus Convention instantiates the institutional obligation to include the public during the initial stages of developments as well as provide the information throughout the whole duration of the developments. Meanwhile other Lithuanian laws obligate the institutions to inform the public only during the last stages of the territorial planing, which means that it is often ‘too late’ for public opinion to make any difference.
For this reason the aforementioned communities addressed the institutions with requests to get acquainted with the Vilnius Old Town Protection Plan which has been under development for the last eight years. Unfortunately, the requests were denied by the Department of Cultural Heritage.
When asked to comment on the refusal to satisfy the multiple requests for information from the communities, the representative of the Department claimed that the applicants did not appeal to a correct legal act. Consequently, it follows that Aarhus Convention had no effect in this case. Brandišauskienė had this to say on the matter:
What they were actually doing, they were dismissing our requests by referring to other legal acts that were favourable to them. While these other legal acts are indeed valid and they indeed regulate certain procedures, however there are other laws in force as well, such as the Public Administration Act, which specifies that the right to information must be granted during a certain period of time. And last but not least, there is an Aarhus Convention which is in force both in our country and internationally. It clearly regulates what an institution is supposed to do and in what time. Meanwhile during the court hearing the majority of the Department’s arguments were based on the claims that “no legal act regulates”… Therefore, I can summarise: for them, Aarhus Convention is no legal act!
It is indeed the conclusion because they were using the formulations such as “there is no such regulation” and “no legal act regulates.” However in the Substatutory Act initiated by out two ministers—the Minister of Environment and the Minister of Culture—clearly states how the information about the Vilnius Old Town Protection Plan is supposed to be publicised—i.e., for 10 days the information is supposed to be publicly available, and in 5 days the institution is obliged to respond to public enquiries. However, if you make information public only for the period of 10 days, one can hardly expect an in depth reaction, and if the information is made public for a longer period, then 5 days is too short period of time for a decent reaction, which was exactly the case during the publicization of the Vilnius Old Town Protection Plan. When our demands to prolong the public availability of information, the response that Department managed to scribble down and send back to all the 600 applicants during these 5 days was, for the lack of a better word, generic.
“Everything” was publicly available on some unknown website
According to Brandišauskienė, the emotional culmination during the hearing was the Department representative’s statement that they did not comply to Aarhus Convention because all the information was already publicly available on a website. However, the respondent was unable to provide neither the address of the website, nor its contents.
In my view, the culmination was reached when the Department representative told us that everything was publicly available on some unknown website even before the communities made their claim. “Everything was there,” he said.
When the Judge asked whether the content was changed or updated afterwards, the respondent claimed that he does not have any information regarding this, however he later added that the website was probably updated after all.
Seeking the recognition of the violation
One of the demands raised by the Vilnius communities is to annul the earlier edicts which prevented the access to information on the Vilnius Old Town Protection Plan. According to Brandišauskienė, the main objective here is the recognition of the violation.
The Ministry of Culture’s main argument was that “it is no longer relevant, and that we simply missed the train. This is why they are not even bothering to defend themselves. Despite of that we claim that it is important to acknowledge that a mistake was made, otherwise the violations will continue,” said Brandišauskienė.
More prone to look at the legal cases, not the international acts of law
Brandišauskienė does not think that institutions do not understand that they have to comply to the Aarhus Convention:
I think that they see that other institutions are reluctant to comply to the international acts of law as well. They like that everything remains in this grey zone where the laws are in force but no one is too zealous in following them. We asked for an information and were refused because they planned to make it public later anyway, so they thought that once they make it public, we will loose our motive to go to court. That was a rather pragmatic attitude. This is why we think that it is important to show that we are not leaving this business unfinished and we are prepared to carry on till the end. The recognition of the violation would mean that each time when submitting a request for information, we will be able to refer to this case and add the court ruling that will have all the necessary explanations. Our experience with the government and district officials shows that they are more prone to look at the legal cases, not international acts of law. They understand that a legal precedent will impel them to follow the law. Meanwhile, there are other ways how to undermine the law, or follow it only partially, or to respond to the public requests in a twisted way, so that they would be satisfied formally, but without any effective results.
When asked about their plans in case they will loose their case, Brandišauskienė said that “there is always a possibility to make an appeal. Administrative court is comprised of two institutions: the primary court and the Court of Appeals. Insofar as the case is related to the human rights, it will be possible to go even further and appeal to the Supreme Administrative Court. I really hope this will not be necessary. Although I have many disappointments regarding the court decisions in the past, I have a lot of hope that this case will be solved positively by the primary court.”
Illustr. Gintarė Matulaitytė