Communicated on 25 April 2016

FOURTH SECTION

Application no. 54467/12 Jolanta KUŽMARSKIENĖ against Lithuania lodged on 16 August 2012

STATEMENT OF FACTS

The applicant, Ms Jolanta Kužmarskienė , is a Lithuanian national who was born in 1973 and lives in Joniškis . She is represented before the Court by Ms D. Balčiūnienė , a lawyer practising in Joniškis .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 2010 Å iauliai Remand Prison published a recruitment notice for a psychologist.

On 14 June 2010 the applicant contacted the prison ’ s human resources division and was told to go for a medical examination at the Central Medical Expert Commission of the Ministry of the Interior ’ s Medical Centre (“the Commission”). On 7 July 2010 the applicant went for the examination, but after her height was measured the process was terminated and the applicant was told that she was unfit for the position because she was too small. The Commission noted that the applicant ’ s height was 151 cm and she was informed that she was underdeveloped. The Commission also stated that domestic regulations provided that women smaller than 155 cm were unfit for work within the security and law enforcement services.

On 13 July 2010 the applicant wrote to the Minister of the Interior and the Minister of Health, who had approved the contested domestic regulations, and asked them to revoke the point concerning height and to annul the Commission ’ s decision. However, she received the response that the Commission ’ s decisions could be contested before the domestic courts. The applicant also complained to the Parliamentary Ombudsperson, who decided that the Commission ’ s decision had not been made after a comprehensive examination of the matter. She also addressed the Equal Opportunities Ombudsperson, who examined her complaint and decided that the regulation in question was more favourable to men than women.

On 31 July 2010 the applicant started court proceedings to annul the Commission ’ s decision. On 1 December 2010 the Vilnius Regional Administrative Court decided to refer the matter to the Supreme Administrative Court and asked whether the provision of the regulation referring to the height of men and women to be accepted into government service was in accordance with the Constitution and the Law on Equal Treatment. On 2 November 2011 the Supreme Administrative Court held that the provision was contrary to the Internal Service Statute in so far as it did not differentiate on height according to profession and was not based on any inability to perform certain functions.

The proceedings before the Vilnius Regional Administrative Court were resumed. On 27 December 2011 the court decided to terminate the part of the case where the applicant sought to annul the decision of the Commission and decided to annul instead the decision by Šiauliai Remand Prison to terminate the procedure for the applicant ’ s employment. The Vilnius Regional Administrative Court held that the decision which had affected the applicant the most was that of Šiauliai Remand Prison and not of the Commission. The court referred the matter back to the prison so it could again examine the applicant ’ s employment application.

On 9 January 2012 the applicant lodged an appeal with the Supreme Administrative Court. She sought to annul both the Commission ’ s decision and that of Šiauliai Remand Prison to terminate her employment procedure. She also stated that she had not asked the court of first instance to refer the matter of her employment back to Šiauliai Remand Prison because by that time the judicial proceedings had taken more than one year and the position at the prison had already been taken. On 21 June 2012 the Supreme Administrative Court amended the decision of the Vilnius Regional Administrative Court and held that the Commission ’ s decision could not be regarded as an independent issue in the case because it was not an individual administrative act and the Commission was not a public authority. The court also stated that the Commission ’ s decision was only an intermediate step in the employment procedure and could not be contested before the domestic courts. The decision which the applicant could have challenged was the one by Šiauliai Remand Prison. The court stated that the applicant had submitted contradictory claims, that is, on the one hand she had asked that Šiauliai Remand Prison be obliged to adopt a decision on the termination of her employment procedure and on the other hand she had asked for Šiauliai Remand Prison to annul its decision on terminating her employment procedure. The court held that a decision stating that the applicant ’ s rights had been breached would not have had any consequences and was not the right way to protect her rights. The court therefore decided to terminate the case.

B. Relevant domestic law

Article 29 of the Constitution provides that everyone is equal before the law, courts, and other state institutions and officials. Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.

Article 5 § 1 (1) of the Law on Equal Treatment provides that when implementing equal treatment provisions, an employer, regardless of the person ’ s age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, must apply the same recruitment criteria and employment conditions when employing or recruiting someone to public service, except in cases provided for by law. Those include restrictions on the grounds of age, a requirement to know the official State language, a prohibition on taking part in political activities, different rights applied on the basis of citizenship, and special measures applied in the healthcare, work safety, employment and labour market sphere, which at the same time also aim to create and apply conditions and opportunities guaranteeing and promoting the integration of the disabled into the labour market.

Article 6 § 1 (4) of the Statute of the Internal Service provides that a person aiming to be employed by the domestic security and safety services has to be healthy enough to perform such functions. The health requirements are set by the Minister of the Interior and the Minister of Health.

Point 17 § 2 of the order of the Minister of the Interior and the Minister of Health of 21 October 2003, No. 1V-380/V-618 ( Lietuvos Respublikos vidaus reikalų ministro ir Lietuvos Respublikos sveikatos apsaugos ministro įsakymas „ Dėl sveikatos būklės reikalavimų asmenims, pretenduojantiems į vidaus tarnybą, pageidaujantiems mokytis vidaus reikalų profesinio mokymo įstaigose, kitose mokymo įstaigose Vidaus reikalų ministerijos siuntimu, bei vidaus tarnybos sistemos pareigūnams sąvado patvirtinimo “ ) provided that if a lack of proper development had led to a man being smaller th an 160 cm or a woman being smaller than 155 cm then they were unfit for service in security and law-enforcement bodies.

Point 17 of the order of the Minister of the Interior and the Minister of Health of 6 April 2012, No. 1V-291/V-308, provides that if a man is smaller than 165 cm or if a woman is smaller than 151 cm because of inadequate development then they are unfit for service in domestic law-enforcement, security or safety bodies.

COMPLAINTS

The applicant complains under Article 6 § 1 and Article 13 of the Convention that the domestic courts at first recognised the unlawfulness of the Commission ’ s decision but then terminated the case and deprived the applicant of the opportunity to start court proceedings for damages.

The applicant also complains under Article 8 taken alone and in conjunction with Article 14 of the Convention, that she suffered discrimination in the recruitment procedure on the grounds of her height.

QUESTIONS TO THE PARTIES

1. Was there a violation of Article 6 § 1 and/or Article 13 of the Convention on account of the fact that the domestic courts stated at first that the decision of the Central Medical Expert Commission was unlawful and unfounded, but then terminated the case and deprived the applicant of the opportunity to seek damages from the State? Moreover, was such deprivation in violation of her right to have an effective remedy?

2. Has there been an interference with the applicant ’ s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention (see Bigaeva v. Greece , no. 26713/05, § 23, 28 May 2009, and Oleksandr Volkov v. Ukraine , no. 21722/11, § § 165-67, ECHR 2013)?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?

3. Has the applicant suffered discrimination on the grounds of her height, contrary to Article 14 read in conjunction with Article 8 of the Convention? In particular, has the applicant been subjected to a difference in treatment in the employment procedure?

If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?