18 March 2009

SECOND SECTION

Application no. 50421 /0 8 Application no. 56213/08 by Juozas SIDABRAS and by Raimundas RAINYS KÄ™stutis DŽIAUTAS against Lithuania against Lithuania lodged on 15 November 2008              lodged on 1 4 October 200 8

STATEMENT OF FACTS

THE FACTS

1. The first applicant

The first applicant, Mr Juozas Sidabras , is a Lithuanian national who was born in 1949 and lives in Kaunas . The facts of the case, as submitted by him , may be summarised as follows.

From 1975 to 1986 he was an employee of the Lithuanian branch of the Soviet Security Service (the KGB). After Lithuania declared its independence in 1990, he found employment as a tax inspector at the Inland Revenue.

On 31 May 1999 the Lithuanian authorities concluded that the first applicant was subject to the restrictions of Article 2 of the Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organisation (“the KGB Act”, see the “Relevant domestic law” below) . As a result, on 2 June 1999 he was dismissed from the Inland Revenue.

The first applicant brought an administrative action against the security intelligence authorities, claiming that his dismissal under the KGB Act , and the ensuing inability to find employment , were unlawful. The domestic courts dismissed his claims.

On 29 November 1999 the first applicant submitted an application to the Strasbourg C ourt alleging that he had lost his job and that his employment prospects had been restricted as a result of the application of the KGB Act , in breach of Articles 8 and 14 of the Convention.

By a judgment of 27 July 2004 in the case of Sidabras and Džiautas v. Lithuania (nos. 55480/00 and 59330/00, ECHR 2004 ‑ VIII) , the Court found a violation of Article 14 taken in conjunction with Article 8 of the Convention. It concluded that the ban on the applicants seeking employment in various branches of the private sector, in application of Article 2 of the KGB Act, constituted a disproportionate measure, despite the legitimacy of the aims pursued ( see § 61 of the judgment). The Court ordered the State to pay the first applicant EUR 7,000 as compensation for his pecuniary and non-pecuniary damage and costs.

In 2005 and in 2006 the Committee of Ministers of the Council of Europe repeatedly discussed the question whether the Court ' s judgments in the cases of Sidabras and Džiautas v. Lithuania and Rainys and Gasparavičius v. Lithuania had been executed. The Republic of Lithuania informed it that the Lithuanian Parliament was preparing changes to the KGB Act which would be approved in the near future.

On 8 December 2006 the first applicant instituted domestic proceedings against the State of Lithuania seeking LTL 257,154 in pecuniary damage s and LTL 500,000 in non-pecuniary damage s which he had allegedly suffered because of the continu ing violation of his right to respect for his private life under Article s 8 and 14 of the Convention . He argued that, owing to the restrictions imposed by the KGB Act, he had been unable to gain employment in certain branches of the private sector since 1999. He also contended that the Lithuanian Parliament had not discussed the Court ' s judgment and had been stalling to amend the provisions of the KGB Act which the Court had found to be incompatible with the Convention. He concluded that since 27 October 2004 , when the Court ' s judgment in his case had become final, the Republic of Lithuania had continued to violate his employment rights .

On 13 March 2007 the Vilnius Regional Administrative Court dismissed the first applicant ' s claims as unsubstantiated. It observed that the Strasbourg C ourt had awarded him compensation for the pecuniary and non-pecuniary damage he had sustained until the Court adopted its judgment on 27 July 2004 . As to the damage which the first applicant had allegedly suffered due to the failure of the State to amend the KGB Act after the Court ' s judgment, it held that he had failed to prove that he had been prevented from find ing employment because of the restrictions contained in the KGB Act.

On 23 March 2007 the first applicant appealed to the Supreme Administrative Court . In addition to requesting compensat ion for the damage he had suffered , he also argued that the proceedings in the administrative case should be suspended and a question regarding the constitutionality of the KGB Act should be referred to the Constitutional Court .

On 14 April 2008 the Supreme Administrative Court upheld the lower court ' s decision and dismissed the first applicant ' s appeal. It observed that the Convention form ed a n integral part of the Lithuanian legal system and that individuals could directly rely on its provisions before the national courts. Moreover, in the event of a conflict between the legal norms of the Convention and national laws , the Convention was to be given priority . The Supreme Administrative Court agreed with the lower court ' s reasoning that the first applicant ' s request for compensation for damage allegedly sustained until 27 July 2004 (the date of the Strasbourg Court ' s judgment in his case ) , should be dismissed because an award had already been made by the Court.

Regarding the first applicant ' s claim in respect of the damage allegedly suffered since then, the Supreme Administrative Court noted that States were free to choose how to correct the breach of an applicant ' s Convention rights and that legislative amendments were not the only way to implement the Strasbourg Court ' s decision. It further observed that even though the legislat ure ha d an obligation, for the sake of legal clarity and legal certainty , to reconcile the domestic law with the norms of the Convention, the fact that the KGB Act had not been amended had not violated the first applicant ' s rights. An individual ' s rights could otherwise be secured by administrative decisions and domestic court practice s . Both the KGB Act and the Strasbourg Court ' s judgment were in force in Lithuania . Nevertheless, in the event of a conflict between them , priority was to be given to the Court ' s judgment. Consequently, e ven though the KGB Act was still in force , a refusal to employ the first applicant in the private sector, on the ground of the restrictions contained in the KGB Act, would be unlawful.

Regarding the facts of the case , the Supreme Administrative Court noted that the first applicant had attempted to obtain employ ment in the private sector. On 21 February 2007 the Šiauliai Labour Exchange ( Šiaulių darbo birža ), a State institution which provides assistance for job seekers, had issued him with a document certifying that he had been registered as a job seeker since 14 June 1999 but had not been employed owing to the restrictions in the KGB Act. Having been repeatedly asked by the court to provide the reasons for the first applicant ' s unemployment, on 28 December 2007 the Šiauliai Labour Exchange had submitted a document stating that he lack ed the qualifications and education required by potential employers. T he Supreme Administrative Court acknowledged that these two documents were contradictory , and deemed it proper to rely on the report of 28 December 2007 as it was more recent and, in the court ' s opinion, more comprehensive and explanatory. It concluded that the restrictions which the KGB Act impose d on a person ' s ability to find employ ment in certain areas of the private sector had not been applied to the first applicant and the existence of the KGB Act, as such, had not violated the first applicant ' s rights and did not entitle him to compensation. The Supreme Administrative Court concluded that the first applicant had not proved that, after the Court ' s judgment of 27 July 2004 , he had been prevented from obtain ing a private sector job by the unlawful actions of State authorities .

Noting that his right to work in the private sector could not be restricted because the Convention could be applied directly, it dismissed the first applicant ' s claim for damages. The Supreme Administrative Court also rejected the first applicant ' s request to refer the question of the constitutionality of the KGB Act to the Constitutional Court as it considered that the latter had already decided that issue in a judgment of 4 March 1999 , and domestic law precluded that court from deciding the same matter twice.

On 14 October 2008 the first applicant lodged the present application with the Court.

2. The second applicant

The second applicant, Mr Kęstutis Džiautas , is a Lithuanian national who was born in 1962 and lives in Vilnius . The facts of the case, as submitted by him , may be summarised as follows.

On an unspecified date in the 1980s, he graduated from Vilnius University as a qualified lawyer. From 11 February 1991 he worked as a prosecutor at the Office of the Prosecutor General of Lithuania .

On 26 May 1999 the Lithuanian authorities concluded that , from 1985 to 1991 , the second applicant had been an employee of the Lithuanian branch of the KGB and that he was subject to the restrictions of Article 2 of the KGB Act. As a result, o n 31 May 1999 he was dismissed from his job at the Office of the Prosecutor General.

The second applicant brought an administrative action against the authorities, claim ing that his dismissal under the KGB Act and the ensuing inability to find employment were unlawful. The domestic courts dismissed his claims.

On 5 July 2000 the second applicant lodged an application with the Court. Like the first applicant, he alleged a violation of Articles 8 and 14 of the Convention.

By its judgment of 27 July 2004 in the aforementioned cases of Sidabras and Džiautas v. Lithuania , the Court found a violation of Article 14 taken in conjunction with Article 8 of the Convention and awarded the second applicant EUR 7,000 in respect of pecuniary and non-pecuniary damage and costs.

On 5 January 2005 the second applicant wrote to the Chairman of the Human Rights Committee of the Lithuanian Parliament, the Prime Minister and the Minister of Justice to enquire whether the State intended to amend the KGB Act and, if so, when.

On 11 January 2005 the Government Agent before the Strasbourg Court informed the applicant that the Ministry of Justice wa s working on possible amendments to the KGB Act. On 26 February 2005 the Chairman of the Human Rights Committee of the Lithuanian Parliament informed h im that Parliament had created a working group which was also drafting legislative amendments.

On 10 October 2006 the second applicant sued the Republic of Lithuania for non-pecuniary damage in the sum of LTL 100,000 which he claimed to have lost because, since 27 July 2004 (the date of the Court ' s aforementioned judgment in his case ), the State had failed to amend the KGB Act . This in turn had restricted his prospects of finding employ ment in certain private sector s . He argued that the common principles governing the execution of the Court ' s judgments require d the State to execute the judgment without undue delay.

On 12 February 2007 the Vilnius Regional Administrative Court dismissed the second applicant ' s claim. It noted that the judgment in the case of Sidabras and Džiautas v. Lithuania did not oblige the State to amend the KGB Act within a specific time-frame and that Parliament was in the process of discussing the relevant legislative changes. It also noted that the applicant had failed to provide any proof that he had actually attempted to gain employ ment in the private sector but had been refused.

On 18 April 2008 the Supreme Administrative Court dismissed the second applicant ' s appeal. Its reasoning was similar to that of its decision of 14 April 2008 in the first applicant ' s case (described above). It observed that the second applicant had based his claims for damages on the alleged non-execution of the Court ' s judgment of 27 July 2004. However, referring to the cases of Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII , and further references ) and Vermeire v. Belgium (29 November 1991, § 26, Series A no. 214 ‑ C), it recalled that States were free under Article 46 of the Convention to choose the appropriate individual and general measures to discharge their legal obligation to execute the Court ' s decisions, albeit monitored by the Committee of Ministers. It also referred to its decision s of 16 September 2005 in case no. N 3 -1603-05 and of 9 November 2004 in case no. A 3 -750-04 , which held that, as Convention norms were abstract , the domestic courts should follow the Strasbourg Court ' s jurisprudence in order to comprehend better their content. The domestic courts could then directly apply the Court ' s judgments.

A s to the facts of the case at hand, the Supreme Administrative Court observed that , since the Court ' s judgment in the case of Sidabras and Džiautas v. Lithuania took priority over the KGB Act, the restriction on work ing in certain private sectors c ould not be applied to the second applicant. Even though the KGB Act ha d not been amended, a refus al to employ him on the basis of the Act ' s restrictions would be in violation of the Convention and therefore unlawful. It also noted that protecting a person ' s rights by the direct application of the C ourt ' s judgments rather than by legislative amendments wa s a n a p p ropr iate way to execute th ose judgments. It followed that , b ecause of the direct application of the Convention and the Court ' s judgments , the State had not failed to act, the latter being a precondition for the State ' s civil liability. Furthermore, the second applicant had failed to prove that , after the Court ' s judgment of 27 July 2004 , he had attempted to obtain employ ment in the private sector and had been refused owing to the restrictions of the KGB Act. The Supreme Administrative Court stressed that “the mere existence of contradictions and ambiguities in the legal system does not in itself provide a basis for a violation of a person ' s rights and does not harm that person”. It t herefore dismissed the second applicant ' s claim in respect of non-pecuniary damage.

On 14 October 2008 the second applicant lodged the present application with the Court.

3. The third applicant

The third applicant, Mr Raimundas Rainys , is a Lithuanian national who was born in 1949 and lives in Vilnius . The facts of the case, as submitted by him , may be summarised as follows.

From 1975 to October 1991 he was an employee of the Lithuanian branch of the KGB. Thereafter he found employment as a lawyer in a private telecommunications company.

On 17 February 2000 t he Lithuanian authorities concluded that the third applicant was subject to the restrictions of Article 2 of the KGB Act. As a result, on 23 February 2000 he was dismissed from his job in telecommunications.

The third applicant brought an administrative action arguing that his dismissal under the KGB Act and the ensuing inability to find employment were unlawful. By a decision of 29 June 2000 , the Higher Administrative Court dismissed his claims to be reinstated in his previous job at the telecommunications company and to be paid compensation for involuntary leave . On 5 September the Court of Appeal upheld the lower court ' s decision.

O n 19 January 2001 t he third applicant lodged an application with the Court alleging that he had lost his job and that his employment prospects had been restricted as a result of the application to him of the KGB Act , in breach of Articles 8 and 14 of the Convention.

In its judgment in the case of Rainys and Gasparavičius v. Lithuania , ( nos. 70665/01 and 74345/01, § 36 , 7 April 2005 ) the Court held that the third applicant ' s inability to pursue his former profession as a lawyer in a private telecommunications company, and his continuing inability to find private-sector employment on the basis of his “former permanent KGB employee” status under the KGB Act, constituted a disproportionate and thus discriminatory measure, despite the legitimacy of the aims pursued. The Court concluded that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.

On 25 July 2005 the third applicant requested the Supreme Administrative Court to reop en the proceedings in his case.

On 23 February 2006 the Supreme Administrative Court noted that the proceedings in the domestic courts related to the dismissal of the third applicant from his position as a lawyer with a telecommunications company. It observed that the Court ' s judgment g ave reason to doubt the lawfulness of th ose domestic decisions . It therefore decided to reopen the proceedings which the third applicant had previously instituted against the State Security Department and his previous employer - the private telecommunications company . The case was remitted to the Vilnius Regional Court for a fresh examination.

On 10 July 2007 the Vilnius Regional Court partly granted the third applicant ' s claim. It acknowledged that he had been dismissed from his previous job unlawfully and so was entitled to pecuniary compensation for the involuntary leave. It took into account the sum which the Strasbourg C ourt had ordered the State to pay the third applicant as compensation for pecuniary damage , and found that he had been fully compensated for his los s of income.

The Vilnius Regional Court further noted that more than seven years ha d elapsed since the telecommunications company had dismissed the third applicant from his job. During th at time the third applicant had worked in companies specialis ing in other fields ( such as railways and television). Moreover, the activities of the telecommunications company had also evolved. In the Regional C ourt ' s view, after such a long time the third applicant would no longer be competent to work as a lawyer at that company. The Regional C ourt also noted the continu ing conflict between the third applicant and the company , which was another reason not to reinstat e him there . Finally, it observed that the KGB Act was still in force. In its view, if the third applicant was reinstated, the question of his dismissal could arise de novo , or his employer w ould face the risk of administrative penalties . In the light of these circumstances, it dismissed the third applicant ' s claim for reinstatement .

Both the third applicant and the telecommunications company appealed.

On 11 February 2008 the Court of Appeal rejected both appeals. It upheld the lower court ' s conclusion that the third applicant had been dismissed from his previous job unlawfully. Nonetheless it observed that he could not be reinstated in his previous post at the telecommunications company since “the laws, which provide for the prohibition on former [ USSR ] State Security Committee employees from work ing in the telecommunications sector are still in force, so that if the [third] applicant was reinstated in his previous job certain problems might arise ” . Moreover, the applicant was then work ing in another company and receive d a pension for his previous work with the USSR State Security Committee . He therefore ha d a source of income. The Court of Appeal also endorsed the lower court ' s view that the third applicant had been compensated by the Strasbourg Court ' s judgment for the pecuniary damage he had suffered as a consequence of his unlawful dismissal.

On 20 June 2008 the Supreme Court dismissed the cassation appeals of the third applicant and the telecommunications company . It noted that the third applicant had been dismissed from his job because of the KGB Act restrictions, found to be in breach of Article 14 taken in conjunction with Article 8 of the Convention, albeit compatible with the Constitution and still in force. The applicant could not therefore be reinstated, and the finding of unlawful dismissal was sufficient . The court noted that he had received compensation following the Strasbourg case.

On 15 November 2008 the third applicant lodged the present application with the Court.

B. Relevant domestic law and practice

The Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organisation ( Ä®statymas dÄ—l SSRS valstybÄ—s saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir Å¡ios organizacijos kadrinių darbuotojų dabartinÄ—s veiklos ‑ (“the KGB Act”) was enacted on 16 July 1998 and came into force on 1 January 1999. Article 2 of the KGB Act provides that former KGB employees are restricted from working in certain areas of the private sector for ten years from the date of its entry into force (for the text of the KGB Act and the domestic law related to it, see the judgment in the case of Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, § § 24-28, ECHR 2004 ‑ VIII ).

Article 153 § 2 (1) of the Code on Administrative Law Procedure allows the domestic proceedings to be reopened in an administrative case if the Strasbourg C ourt finds that the decision of the national court is contrary to the Convention or its Protocols. Article 366 § 1 (1) of the Code on Civil Procedure provides a similar possibility in normal civil cases.

Article 26 of the Law on Employment Contract s provides that an employment contract is to be terminated if it does not comply with the requirements of law. Under Article 42 of that Law, an employee who disagrees with his or her dismissal may appeal to a court . If the court finds that the employee has been unlawfully dismissed , he or she must be reinstated and the employer must pay the employee the unpaid salary. When an unlawfully dismissed employee declares that , if reinstated, working conditions would be un tenable , the court may, at th at employee ' s request, refrain from ordering reinstat ement and a ward pecuniary compensation instead.

Article 187 6 of the Code on Administrative Law Offences stipulates that an employer who fails to comply with the requirement of the KGB Act to dismiss a “former KGB permanent employee” is liable to a fine of between LTL 3,000 and LTL 5,000.

COMPLAINTS

Invoking Articles 8 and 14 of the Convention , t he first and second applicants complain that they have been barred from employ ment in the private sector. Whilst conceding the positive nature of the Supreme Administrative Court ' s decisions of 14 April 2008 and 18 April 2008 and the value of those decisions to the Lithuanian legal system, they claim that those decisions are directed to wards the future and have been of no benefit to them , because in their case the violations of the Convention rights have continued since 2 7 October 2004, when the Strasbourg C ourt ' s judgment in their previous applications of Sidabras and Džiautas v. Lithuania be came final .

The first and second applicants further contend that the purported possibility of relying directly on the Court ' s judgment to defend their right to private employment is purely theoretical and therefore in sufficient. In reality Lithuanian courts apply the Convention and the Court ' s ju risprudence very rare ly . Furthermore, this is usually done only by the highest courts – the Supreme Administrative Court and the Supreme Court. They further argue that the ability to enjoy Convention rights must not be illusory. The se applicants note that the prohibition on tak ing up a job in certain private sector s is laid down not only in the KGB Act, but also in other l egislation regulat ing particular spheres of activity . They emphasis e the fact that Article 187 6 of the Code on Administrative Law Offences provides for a fine ranging from LTL 3 , 000 up to LTL 5 , 000 to be imposed on an employer who fails to observe the requirements of the KGB Act . From the above , the se applicants conclude that , before submitting their claim to the Vilnius Regional Administrative Court , they were well aware that they had no possibility of finding employment with the organisations which are listed in the KGB Act . It would thus be unreasonable to require them to apply for jobs with such organisations. They contend that the Republic of Lithuania should have amended the KGB Act in accordance with the Court ' s judgment, but has failed to do so.

Invoking Articles 8 and 14 of the Convention , the third applicant complains of a violation of a right to seek employ ment in the private sector. He notes that in his case the Court delivered its judgment on 7 April 2005. Alt hough the judgment did not specify a deadline for amending the KGB Act , the period of three years [by now nearly four years] during which the State has failed to amend it was n either reasonable nor justified. The third applicant notes that each year the Lithuanian Parliament passes several hundred laws and there are no objective reasons why the KGB Act , which is contrary to the Convention, should remain in force. He further observes that the payment of the sum awarded by the Strasbourg C ourt has not redressed the violation of his rights and does not constitute full compliance with the Court ' s judgment. In his view, the failure of the Lithuanian courts to order his reinstate ment with the telecommunications company , on the ground that the KGB Act was still in force , reveals a continu ing violation of his rights ever since the Court ' s judgment became final.

QUESTIONS TO THE PARTIES

1. May the first and second applicants still be considered victims within the meaning of Article 34 of the Convention?

The Court draws the parties ' attention to the fact that the case file contains no documents showing the employment history of the first and second applicants since October 2004, or whether they ever attempted to find employment in the private sector but were refused due to their “former permanent KGB employee” status under the Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organisation (“the KGB Act”). The Court also refers to the Supreme Administrative Court ' s reasoning, in the decisions of 14 April 2008 and 18 April 2008, to the effect that in the Lithuanian legal system the Convention and the Court ' s judgments prevail over the national laws and, thus, over the KGB Act and the domestic courts may directly appl y the Court ' s judgment in the case of Sidabras and Džiautas v. Lithuania (nos. 55480/00 and 59330/00, ECHR 2004 ‑ VIII) in order to en force the applicants ' employment possibilities in the private sector .

2. If the first and second applicants may still be considered victims, has there been a further violation of their rights under Article 14 of the Convention taken in conjunction with Article 8?

3. Was the refusal to reinstate the third applicant in his previous job at the private telecommunications compan y, despite the finding that his original dismissal had been unlawful, compatible with Article 14 of the Convention taken in conjunction with Article 8?

4. Did the applicants have, under Lithuanian law, an effective remedy, within the meaning of Article 13 of the Convention, as regards their right to respect for their private life?

The Court draws the parties ' attention to the different conclusions reached by, on the one hand, the Supreme Administrative Court in its decisions of 14 April 2008 and 18 April 2008 that the Convention and the Court ' s case-law may be directly relied upon when defending Human Rights at the domestic level, and that in the hierarchy of legal norms the Convention takes priority over national laws and, on the other hand, the Supreme Court ' s decision of 20 June 2008 that, since the KGB Act, the constitutionality of which had already been verified, is still in force, the question of the applicant ' s reinstatement could not be favourably resolved .

The Government are requested to submit information concerning the execution process of the judgments ( Sidabras and Džiautas v. Lithuania (27 July 2004, nos. 55480/00 and 59330/00) and Rainys and Gasparavičius v. Lithuania ( 7 April 2005, nos. 70665/01 and 74345/01) pending before the Committee of Ministers of the Council of Europe.