CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 23 janvier 2023

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display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 }   GRAND CHAMBER CASE OF MACATĖ v. LITHUANIA (Application no. 61435/19)     JUDGMENT Art 10 • Freedom of expression • Temporary suspension of children’s fairy tale book depicting same-sex relationships and its subsequent labelling as harmful to children under the age of 14 • Book neither promoting same-sex relationships at the expense of different-sex relationships nor “insulting”, “degrading” or “belittling” the latter • Impugned measures not pursuing any legitimate aim for the purposes of Art   10 §   2 in so far as seeking to limit children’s access to information depicting same-sex relationships as essentially equivalent to different-sex relationships • Equal and mutual respect for persons of different sexual orientations inherent in the whole fabric of the Convention • Restrictions on children’s access to information about same-sex relationships, based solely on considerations of sexual orientation, incompatible with notions of equality, pluralism and tolerance inherent in a democratic society   STRASBOURG 23 January 2023   This judgment is final but it may be subject to editorial revision.     Table of Contents INTRODUCTION PROCEDURE THE FACTS I.   PUBLICATION OF THE APPLICANT’S BOOK II.   MEASURES TAKEN WITH REGARD TO THE BOOK III.   DOMESTIC COURT PROCEEDINGS A.   The first set of proceedings 1.   The parties’ submissions (a)   The applicant (b)   The University (c)   The third parties 2.   Decisions of the courts (a)   The first-instance and appellate courts (b)   The Supreme Court B.   The second set of proceedings 1.   Proceedings before the Vilnius District Court (a)   The parties’ submissions (b)   The Vilnius District Court’s decision 2.   Proceedings before the Vilnius Regional Court (a)   The parties’ submissions (b)   The Vilnius Regional Court’s decision 3.   Proceedings before the Supreme Court RELEVANT LEGAL FRAMEWORK I.   DOMESTIC LAW AND PRACTICE A.   Constitution B.   Civil Code C.   Science and Education Act D.   Equal Treatment Act E.   Act on the Protection of Minors against Negative Effects of Public Information (Minors Protection Act) 1.   Legislative history (a)   Proposed amendment of 2006 (b)   Proposed amendments of 2007-2009 (c)   Adopted amendment of 14 July 2009 (d)   Proposed amendment and parliamentary debate leading to the adoption of the current version of section   4   §   2   (16) of the Minors Protection Act 2.   Provisions which are currently in force 3.   Proposed amendments of 2014 and 2017 F.   Legal instruments regarding liability for administrative offences G.   Rules for marking and distributing public information which may be harmful to the development of minors H.   Case-law of the Constitutional Court 1.   On freedom of expression 2.   On the prohibition of discrimination 3.   On the constitutional concept of family I.   The 2014 annual report of the Office of the Equal Opportunities Ombudsperson J.   Decisions of the Inspectorate of Journalist Ethics concerning section   4 § 2 (16) of the Minors Protection Act II.   INTERNATIONAL MATERIAL A.   Council of Europe 1.   Parliamentary Assembly of the Council of Europe (PACE) 2.   European Commission for Democracy through Law (Venice Commission) 3.   European Commission against Racism and Intolerance (ECRI) B.   European Union 1.   EU Charter of Fundamental Rights 2.   Infringement procedure before the Court of Justice of the European Union 3.   Resolutions of the European Parliament 4.   Surveys by the EU Fundamental Rights Agency and the Eurobarometer C.   United Nations 1.   International Covenant on Civil and Political Rights (ICCPR) 2.   Convention on the Rights of the Child 3.   UN Human Rights Committee 4.   UN Independent Expert on sexual orientation and gender identity III.   COMPARATIVE LAW AND PRACTICE A.   Council of Europe member States B.   Other States 1.   United States of America 2.   Canada THE LAW I.   PRELIMINARY ISSUE II.   THE GOVERNMENT’S OBJECTION BASED ON THE LACK OF SIGNIFICANT DISADVANTAGE A.   The parties’ observations 1.   The Government 2.   The applicant B.   The Court’s assessment III.   ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A.   Admissibility B.   Merits 1.   The parties’ submissions (a)   The applicant (b)   The Government 2.   Submissions of third-party interveners (a)   European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), ARTICLE 19 and Professor David Kaye (b)   Háttér Society 3.   The Court’s assessment (a)   Whether the impugned measures can be attributed to the respondent State (b)   Existence of an interference (c)   Lawfulness of the interference (d)   Legitimate aim (e)   Conclusion IV.   ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10 V.   APPLICATION OF ARTICLE   41 OF THE CONVENTION A.   Damage B.   Costs and expenses 1.   The parties’ submissions 2.   The Court’s assessment OPERATIVE PROVISIONS JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, LUBARDA, GUERRA MARTINS AND ZÜND JOINED BY JUDGE KŪRIS   In the case of Macatė v. Lithuania, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President ,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Georges Ravarani,   Marko Bošnjak,   Ganna Yudkivska,   Egidijus Kūris,   Branko Lubarda,   Yonko Grozev,   Carlo Ranzoni,   Stéphanie Mourou-Vikström,   Tim Eicke,   Arnfinn Bårdsen,   Erik Wennerström,   Saadet Yüksel,   Ana Maria Guerra Martins,   Andreas Zünd , judges , and Marialena Tsirli, Registrar, Having deliberated in private on 23 March and 28 September 2022, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The case concerns a collection of six fairy tales written by the applicant, two of which depicted marriage between persons of the same sex. After its publication, the distribution of the book was temporarily suspended, and was later resumed after the book was marked with a warning label stating that its contents could be harmful to children under the age of 14. The applicant complained about the measures imposed in respect of the book, relying on Article 10 of the Convention read alone and in conjunction with Article 14. PROCEDURE 2.     The case originated in an application (no. 61435/19) against the Republic of Lithuania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Neringa Dangvydė Macatė (“the applicant”), on 22 November 2019. 3.     The applicant was initially represented by Mr V. Mizaras, a lawyer practising in Vilnius, and subsequently by Mr R. Wintemute and Mr   M.   Dingilevskis, lawyers practising in London and Vilnius respectively. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė. 4.     The application was allocated to the Second Section of the Court (Rule   52   §   1 of the Rules of Court). 5.     On 21 March 2020 the applicant died. Her mother and legal heir, Ms   Jūratė Meškauskaitė, expressed the wish to pursue the proceedings on the applicant’s behalf. 6.     On 18   June 2020 the Government were given notice of the application. 7.     The applicant’s mother and the Government filed observations on the admissibility and merits of the application. 8.     On 31 August 2021 the Chamber of the Second Section, composed of Jon Fridrik Kjølbro, President, Carlo Ranzoni, Aleš Pejchal, Egidijus Kūris, Branko Lubarda, Marko Bošnjak, Saadet Yüksel, judges, and Hasan Bakırcı, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber (Article 30 of the Convention and Rule 72). 9.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 10.     The President granted leave to submit written comments to the Háttér Society and, jointly, to Professor David Kaye, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and ARTICLE 19 (Article   36   §   2 of the Convention and Rule   44   §   3). 11.     A hearing took place in public in the Human Rights Building, Strasbourg, on 23 March 2022. There appeared before the Court: (a)     for the Government Ms   K. Bubnytė-Širmenė ,   Agent , Ms   N. Bruskina ,   Adviser ; (b)     for the applicant Mr   R. Wintemute ,   Counsel , Mr   M. Dingilevskis ,   Adviser .   The Court heard addresses by Ms Bubnytė-Širmenė and Mr Wintemute, as well as their replies to questions put by judges. THE FACTS PUBLICATION OF THE APPLICANT’S BOOK 12.     The applicant, who was openly homosexual, was a professional writer and a specialist in children’s literature. 13 .     In December 2012 the publishing house of the Lithuanian University of Educational Sciences (hereinafter “the University”), a public university, applied to receive funding from the Ministry of Culture for the publication of a book written by the applicant – a collection of original fairy tales aimed at children of younger school age. In the application for funding, it was stated that the fairy tales would be based on traditional fairy-tale motifs but would depict members of various marginalised groups, with the aim of teaching children to accept those who looked or lived differently. The fairy tales had been reviewed by an educator and by a children’s author; the reviewers considered them to be suitable for primary school-age children and emphasised the need to foster tolerance towards stigmatised social groups. Moreover, according to the reviewers, such fairy tales were undoubtedly necessary, in view of the prevalence of bullying and violence among children in Lithuania and the lack of similar literature aimed at the youngest readers. 14 .     In May 2013 the University signed a contract with the Ministry of Culture, whereby the Ministry agreed to provide partial funding for the publication. The University undertook to publish the book and to distribute 140 copies to public libraries across the country. 15 .     In December 2013 the University’s publishing house published the book Amber Heart ( Gintarinė širdis ), which contained six fairy tales. They depicted characters from different ethnic groups or with intellectual disabilities, and addressed issues such as stigmatisation, bullying, divorced families and emigration. Most of the fairy tales contained some depiction of loving committed relationships between men and women. In two of the six fairy tales, the main storylines concerned relationships and marriages between persons of the same sex. 16 .     The fairy tale “The Three Princes’ Search for Wisdom” told the story of a king who sent his three sons out into the world. The two elder princes each met an enchanted maiden and ended up marrying her, whereas the youngest one arrived at a city whose inhabitants were dark-skinned and fell in love with a male tailor. The text of the fairy tale included the following: “The prince and the tailor stayed at the castle. No one even noticed that the tailor had slightly darker skin than other people. And it did not bother anyone that the two young men held hands and exchanged loving glances while they walked in the royal garden. So it was in this kingdom: everyone knew that the heart wants what it wants and loves whom it loves. ... As soon as everyone sat down, the marshal made an announcement. ‘The king’s eldest son and his wife!’ ... ‘The middle son of our king and his wife!’ ... ‘The youngest son of our king and his husband!’ ... The king’s third son stepped in with the young tailor ... [It] was still odd for [the guests] to see the two young men holding hands. The queen understood and smiled. ‘And as for this, well, the heart wants what it wants. And when the heart speaks, we have to listen. Otherwise, there won’t be any peace or joy in life.’ ‘These are words of wisdom,’ the guests agreed. ‘It is a great honour to be invited by such wise sovereigns. No wonder your kingdom thrives,’ they added ... ... After the celebration was over, the guests returned to their homes ... and [told] all their friends and neighbours that the young tailor had found the love of his life and that it happened to be a son of a king. And that was a great honour because that king was very wise ...” 17 .     Another fairy tale, “The Princess, the Shoemaker’s Daughter and the Twelve Brothers”, told the story of a princess who rejected numerous male suitors and cursed them by turning them into nightingales. Eventually she married her childhood friend – a shoemaker’s daughter. After their wedding, the princess learned that the twelve brothers of the shoemaker’s daughter had been among those whom she had turned into nightingales. The two young women travelled to a foreign country where love was forbidden and where the nightingales had been caged in the castle of the evil king. They disguised themselves as a gardener and a cook and found work in the king’s castle, where they eventually succeeded in reversing the spell cast on the twelve brothers. The text of the fairy tale included the following: “The shoemaker’s daughter hugged the princess and repeated the words of the oath, ‘Do you agree now to be with me until death do us part?’ ‘I will love you for a lifetime,’ said the princess with a relieved heart ... But after the first night, the shoemaker’s daughter looked sad and pale. No wonder: as soon as the happy princess fell asleep with the shoemaker’s daughter in her arms, a nightingale flew to the window, sat in the bush, and began to sing. The shoemaker’s daughter listened to the sad melody until the morning and thought of her brothers. The following night, two nightingales flew in and again prevented the shoemaker’s daughter from going to sleep. The shoemaker’s daughter didn’t want to say anything to the princess. She just shook her head sadly. This pattern of events lasted for eleven nights. Each night, a new nightingale joined the singers. The princess did not wait for them to arrive. Once the sun went down, the princess always fell into a deep sleep. She did not notice the shoemaker’s daughter escaping from her embrace and going to the window to listen to the song of the nightingales. But in the morning, the shoemaker’s daughter would always be sad. ... When [the princess and the shoemaker’s daughter] met in the rose garden, they hid behind a bush and embraced. They missed each other so much ... Suddenly, the rosebush parted and the king appeared in front of them. ‘What do I see?’ he shouted. ‘My gardener is kissing my cook! You have violated the laws of this country. It is forbidden to love here. Is it not clear that families are meant only for continuation of kin and to have somebody inherit their wealth? For this crime, you will be publicly burned at the stake to set an example for others.’ ...” 18 .     The University published 500 copies of the book. It delivered 140   copies to sixty-six public libraries and another 130 to bookshops; of the latter, over eighty copies were sold. In February 2014 the University presented the book at the Vilnius Book Fair. MEASURES TAKEN WITH REGARD TO THE BOOK 19 .     On 1 March 2014 one of the biggest national newspapers, Lietuvos rytas , published an article entitled “Fairy tales about non-traditional love – in children’s backpacks”. It contained a description of the two fairy tales from the book which dealt with same-sex relationships and an interview with the applicant which focused on those two fairy tales. The applicant spoke about her experience of working with children who had been victims of bullying and about her wish to foster respect for all people and all families. It was mentioned that she was a children’s author with over fifteen years’ experience and that she was openly lesbian. The article also included comments from two members of the Lithuanian Parents’ Forum, an association, who expressed strong criticism of the fact that stories about same-sex relationships were being presented to children. 20 .     On 3 March 2014 the Registry of the Government received an email from an individual alleging that the book was “encouraging perversions”, and forwarded it to the Ministry of Culture. The Ministry requested the Inspectorate of Journalist Ethics (hereinafter “the Inspectorate”) to assess whether the book might be harmful to children. 21 .     On 20 March 2014 eight members of the Seimas (the Lithuanian Parliament) sent a letter to the rector of the University, in which they referred to the article in Lietuvos rytas (see paragraph 19 above). The letter stated that the Lithuanian Parents’ Forum and other organisations representing families had expressed their concerns about the distribution of any books which “sought to instil in children the idea that marriage between persons of the same sex was a welcome phenomenon”. The members of the Seimas stated that they were surprised by the fact that the applicant’s book had been financed by the Ministry of Culture and published by the University. They asked the rector to explain whether the book complied with the University’s policy regarding the education of children. 22 .     On 27 March 2014 the rector ordered the University’s publishing house to suspend the distribution of the book. All the copies which had not yet been distributed to shops or public libraries, as well as all unsold copies in shops, were returned to storage at the University. The only copies which were not recalled were those which had already been distributed to libraries. 23 .     On 8 April 2014 the Inspectorate presented its conclusions to the Ministry of Culture, finding that the two fairy tales which depicted same-sex couples contained information which was harmful to minors, as provided in section 4 § 2 (16) of the Act on the Protection of Minors from Negative Effects of Public Information (hereinafter “the Minors Protection Act”). The relevant parts of the Inspectorate’s conclusions read as follows: “Please be informed that the experts under the Inspector of Journalist Ethics who assess the impact of public information on minors have evaluated the information (fairy tales) published in the book Amber Heart and found that the information published in the fairy tales ‘The Three Princes’ Search for Wisdom’ [and] ‘The Princess, the Shoemaker’s Daughter and the Twelve Brothers’ falls into the category of information having a negative impact on minors – it meets the criterion laid down in section   4   §   2   (16) of the [Minors Protection Act] (it encourages a different concept of marriage and creation of family from the one enshrined in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania). An attitude, as formed in the two fairy tales, that same-sex couples can create a family is incompatible with the Constitution of the Republic of Lithuania, which provides that marriage is to be concluded upon the free mutual consent of a man and a woman (Article   38), and the Civil Code of the Republic of Lithuania, in accordance with which marriage may be contracted only with a person of a different sex (Article 3.12). It should be noted that the Act defines ‘encouraging’ as tendentious information which urges minors to take specific actions or to acquire or change their habits, attitudes, preferences or behaviour (section 2 § 5 of the Act). The information contained in the fairy tales, not only because of its content, but also because of its form (the fairy tale reflects reality through fantastical images; its seemingly naïve content and its attractive form convey the information in a way that is comprehensible to the child), is purposeful – it is aimed, among other things, at changing attitudes and/or behaviour. Experts point out that pre-school children and primary school pupils show a more gradual progression towards maturity. At a time marked by magical, symbolic thinking and a vivid imagination, and the introduction of the foundations of ethical-moral values, the perception and knowledge of one’s own gender and the perception and understanding of gender differences, fairy tales that portray the relationship between same-sex couples as normal and self-evident are harmful to a child’s fragile, nascent worldview and are overly invasive, directive and manipulative. In the light of the arguments put forward, the experts are of the opinion that the information published in the book, which fulfils the criterion laid down in section   4   §   2   (16) of the Act, has a negative impact on persons under the age of 14 ... The Inspector notes that, according to the experts’ opinion, the dissemination of information which has a negative impact on minors, contained in the book Amber Heart , is not prohibited, but in order to protect the interests of minors under the age of 14, the dissemination of such information must be restricted, that is to say, if the book is distributed in a place to which minors may have access, it must be distributed in binders or packaging the design of which does not adversely affect the development of minors and on which an appropriate warning label ‘Information may have a negative impact on persons under the age of 14’ or ‘N-14’ must be clearly visible.” 24 .     The Ministry of Culture forwarded the Inspectorate’s conclusions to the University and requested it to take the measures which the Inspectorate had recommended. 25 .     In May 2014 the rector of the University informed the eight members of the Seimas (see paragraph 21 above) that the impugned fairy tales did not comply with the University’s policy regarding the education of children and that the head of its publishing house had been given a disciplinary penalty. 26 .     In May 2014, in an article published on the website of the Lithuanian Human Rights Centre, a non-governmental organisation, the applicant pointed out that, in addition to the two same-sex relationships, the book also depicted eight loving relationships between persons of different sex – thus, she contended that there were no grounds to claim that the book sought to promote one particular family model. The article also quoted a representative of the University, who described the two impugned fairy tales as harmful and amounting to “primitive and biased propaganda of homosexuality” and stated that the University deeply regretted publishing them. The representative of the University furthermore stated that “according to scientists, teachers and educators, children who are too young to have an interest in certain social issues, such as narcotic drugs or different sexual orientations, should not be forcibly exposed to information about them”. 27 .     On 30 May 2014 the Inspectorate held a meeting with a group of experts, consisting of two lawyers and a children’s psychiatrist. They reiterated and confirmed the conclusions previously reached by the Inspectorate (see paragraph   23 above). 28 .     In July 2014 the applicant lodged a complaint with the administrative courts, asking them to set aside the Inspectorate’s conclusions of 8 April 2014 and the instruction given by the Ministry of Culture to the University to implement the Inspectorate’s recommendations (see paragraphs 23 and 24 above). The Vilnius Regional Administrative Court refused to accept the complaint for examination. It held that the impugned documents did not contain any orders that were binding on the addressees and thus no complaints against them could be lodged with the courts. Furthermore, the contract regarding the publication of the book had been signed between the Ministry of Culture and the University (see paragraph 14 above), the applicant had not been a party to that contract, and therefore the impugned documents had not affected her rights or obligations. The applicant did not appeal against that decision. 29 .     In October 2014 the University contacted the sixty-six public libraries to which copies of the book had been delivered and asked them to mark each copy with a warning label stating that it contained information which could be harmful to children under the age of 14. From the information provided by the Government it appears that several libraries decided not to mark the books with the labels. The Government also submitted that the book remained available at the biggest library of Lithuania, the Martynas Mažvydas National Library, without any age-based restrictions and that it was listed in that library’s catalogue as aimed at five to ten-year-old children. 30 .     From May to November 2014 the book was available free of charge on the website of the Lithuanian Human Rights Centre. In December 2014 a second edition, consisting of 600 copies, was published by several non–governmental organisations. This edition was distributed in bookshops and libraries without any warning labels and with a sticker depicting a rainbow flag. There is no indication that any measures were taken against the publishers or the distributors of the second edition. 31 .     On 25 March 2015 the rector of the University ordered the publishing house to resume the distribution of the book in accordance with the recommendations of the Inspectorate. The copies of the book which had been published but not yet distributed had to be marked with warning labels stating that the book contained information which could be harmful to children under the age of 14. 32.     At the material time, the relevant legislation provided that failure to comply with the requirements for labelling or distributing published material which was harmful to minors was punishable by a warning or a fine (see paragraph 89 below). DOMESTIC COURT PROCEEDINGS The first set of proceedings The parties’ submissions (a)    The applicant 33 .     In October 2014 the applicant lodged a civil claim against the University in which she complained about the decision to suspend the distribution of the book (see paragraph 22 above). Following the University’s decision to resume the distribution of the book and to mark it with warning labels (see paragraph 31 above), she complained about the latter measure as well. 34 .     The applicant submitted that the University’s decisions had been motivated by its hostility towards her sexual orientation and towards the positive depiction of same-sex relationships in two of the six fairy tales, as demonstrated by various statements made by the University (see paragraphs   25 and 26 above). She also submitted that the Inspectorate’s conclusions had not been legally binding on the University and that the University had taken the impugned decisions on its own initiative. 35 .     The applicant further contended that none of the fairy tales encouraged any kind of harmful behaviour or contradicted the concept of family as it was understood in the case-law of the Constitutional Court (see paragraph 98 below) and argued that they were suitable for children of all ages. (b)    The University 36 .     The University submitted that, being the publisher of the book, it had to comply with the provisions of the Minors Protection Act. It stated that   the letter sent to it by several members of the Seimas (see paragraph 21 above) had raised reasonable doubts as to whether the contents of the book complied with the requirements of the Act, and for that reason it had temporarily suspended the book’s distribution. 37 .     The University further stated that the Inspectorate was the authority tasked with monitoring the compliance of public information with the relevant legal requirements, and it had concluded that the book did not meet those requirements. Therefore, the University had to comply with the Inspectorate’s conclusions as long as they had not been set aside by the courts. 38 .     Moreover, the University denied that its actions had been in any way motivated by discrimination. It submitted that the impugned measures had been taken because of the book’s possible harm to children, who “may be unable to understand the phenomena discussed therein”. (c)    The third parties 39 .     The Ministry of Culture and the Inspectorate, which were third parties in the proceedings, opposed the applicant’s claim on grounds similar to those relied on by the University. The Inspectorate pointed out that the University was under an obligation to comply with the Minors Protection Act and the Rules for marking and distributing public information which may be harmful to the development of minors (see paragraphs 82, 84, 91 and 92 below), and that a failure to comply with the requirements of those instruments could lead to its being held liable under the law (see paragraph   89 below). Decisions of the courts (a)    The first-instance and appellate courts 40.     On 16 April 2015 the Vilnius District Court dismissed the applicant’s claim. It held that the University had not undertaken an obligation towards the applicant to distribute the book in any specific manner, and in the absence of such an obligation, its decisions on how to distribute the book could not have amounted to discrimination against her. On 2 March 2016 the Vilnius Regional Court upheld that decision. It also stated that the decisions taken by the University had not been based on any discriminatory considerations but on objective grounds – namely, the University’s obligation to comply with the Minors Protection Act and with the instructions issued by the Ministry of Culture and the Inspectorate. (b)    The Supreme Court 41 .     On 6 December 2016 the Supreme Court quashed the decisions of the lower courts and remitted the case for fresh examination. It found that those courts, when applying section 4 § 2 (16) of the Minors Protection Act, had failed to examine whether the applicant’s book indeed promoted a different understanding of marriage and creation of family from that which was enshrined in the Constitution and the Civil Code, or whether it merely sought to encourage tolerance towards persons of different sexual orientations. The Supreme Court further held: “36. ... [A]lthough the courts found that the parties did not have a publishing agreement, the courts unreasonably disregarded the established fact that [the University] had in fact distributed [the applicant’s] book ... 37. Moreover, the courts which examined the case, when dealing with [the applicant’s] argument that the distribution of her book had been stopped on discriminatory grounds on the basis of sexual orientation, rejected that argument on the sole ground that [the University] had the right not to distribute the book and therefore, there was no basis for a finding of discrimination. The courts did not investigate at all the circumstances of discrimination alleged by [the applicant], and unjustifiably shifted onto her the burden of proving discrimination ... [The applicant] submitted that [the University] had discriminated against her by suspending the distribution of the book on the basis of the letter ... of the Ministry of Culture of 24   April 2014 and the letter of the Inspectorate of Journalist Ethics of 8 April 2014, which stated that the information contained in the book had a negative impact on minors, that is to say, it created the notion that a family could be formed by people of the same sex. 38. In this connection, it is necessary to draw attention to the case-law of the ECtHR on the protection of the interests of minor children in the context of the dissemination of information about homosexuality ... In its case-law, the ECtHR, when analysing the necessity of restricting freedom of expression (Article 10 of the Convention) in a democratic society, focuses on the analysis of the content of the work and publication, their individual elements (such as text or illustrations) and their possible impact on minors, society and morality (not in a generalised way, but arguing those aspects in detail), the extent of the restriction imposed and its objective necessity (including consideration of the need for various possible measures, such as special labels or packaging) (see, for example, Handyside v. the United Kingdom , 7 December 1976, Series A no. 24; Vejdeland and Others v. Sweden , no. 1813/07, 9 February 2012; and Kaos GL v. Turkey , no. 4982/07, 22 November 2016). 39. The ECtHR has also noted on numerous occasions that discrimination based on sexual orientation is just as serious as racial or ethnic discrimination. The ECtHR has interpreted the general principles under Article 14 of the Convention (prohibition of discrimination), according to which, in order for the issue raised to trigger the application of Article 14, there must be a difference in treatment between persons in similar (comparable) situations. Such unequal/different treatment is considered discriminatory if it does not have an objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the measures taken and the aim pursued. The State has a margin of appreciation in assessing whether and to what extent differences in similar situations justify unequal treatment (see, among other authorities, Schalk and Kopf v. Austria , no.   30141/04, § 96, ECHR 2010; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013 (extracts); and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 40. The ECtHR has repeatedly stated that differences based on sexual orientation, like those based on gender, require ‘particularly compelling and weighty justification’ (see Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, § 90, ECHR 1999-VI, and L. and V. v. Austria , nos. 39392/98 and 39829/98, § 45, ECHR 2003-I, cited in Vallianatos and Others , § 77). When unequal treatment is based on the grounds of gender or sexual orientation, the limits of the State’s margin of appreciation are narrow. Differences based solely on considerations of sexual orientation are unacceptable under the Convention (see E.B. v. France [GC], no. 43546/02, §§ 93 and 96, 22 January 2008, cited in Vallianatos and Others , § 77). 41. In the present case, the appellate court relied on the letter of the Inspectorate of Journalist Ethics of 8 April 2014 in order to justify the negative impact of the book on minors and considered it to be binding; however, the court did not carry out an independent assessment of the [Inspectorate’s] conclusion on the impact of the book on minors, nor did it investigate and assess the content of the book itself, or assess the impact of the book on minors and the proportionality of the limitation imposed on it. These circumstances are relevant in the light of Article 14 of the Convention read in conjunction with Article 10. The panel of judges notes that the Vilnius Regional Administrative Court, in its decision of 24   July 2014 ... stated that the letter of the Inspectorate of Journalist Ethics was of a recommendatory nature only and was not binding on [the University]. This letter is not binding on the court examining the case either, but it (the letter) is written evidence and must be considered together with other evidence. 42. The above-mentioned infringements of procedural law by the appellate court may have contributed to the adoption of an unlawful decision in the case (Article   346   §   2   (1) of the Code of Civil Procedure). Therefore, the decision ... of the Vilnius Regional Court of 2 March 2016 must be quashed ...” The second set of proceedings Proceedings before the Vilnius District Court (a)    The parties’ submissions (i)       The applicant 42 .     During the fresh examination of the case by the Vilnius District Court, the applicant reiterated the arguments which she had presented in her initial claim (see paragraphs 33-35 above). In addition, she submitted that the book, before its publication, had been assessed by specialists in literature, psychology, educational science and other relevant fields, and they had not had any objections to its content. By contrast, the University had not demonstrated that the impugned decisions had been based on any relevant expert assessment. 43 .     She also submitted to the court an opinion of a clinical psychologist, who stated that the book did not include any content which had been scientifically proven to cause harm to children. According to the psychologist, greater harm could be caused by the prohibition on talking about homosexuality in children’s literature and on encouraging understanding and acceptance of homosexual persons, who were still being stigmatised and discriminated against in Lithuania. The psychologist pointed out that homosexuality was not considered a mental disorder by the relevant specialist bodies, such as the American Psychiatric Association and the American Psychological Association; nor was it included in the World Health Organization’s classification of diseases, which was used in Lithuania. Furthermore, there was a scientific consensus that a person did not choose his or her sexual orientation. Therefore, fairy tales depicting same-sex relationships could not be considered harmful. 44 .     In addition, the applicant submitted to the court an opinion of the Human Rights Monitoring Institute, a non-governmental organisation. This opinion referred to the case-law of the Court, according to which social acceptance of homosexual persons was not irreconcilable with respect for family values, and there was no evidence that the mere mention of homosexuality, or an open discussion about the social status of sexual minorities, could have a negative effect on children (references were made to, among other authorities, Alekseyev v. Russia , nos.   4916/07 and 2 others, 21   October 2010, and Bayev and Others v.   Russia , nos.   67667/09 and   2   others, 20 June 2017). 45.