PARTLY DISSENTING OPINION OF JUDGE FURA-SANDSTR Ö M

I voted against holding that the respondent State, in order to satisfy the applicant ’ s claim for pecuniary damage, should pass the required subsidiary legislation, pursuant to Article 2.27 of its Civil Code on the gender reassignment of transsexuals, within three months of the judgment becoming final (see paragraph 74 and point 5 of the operative provisions ). In all other aspects I agree with the majority.

My principal concern is that, by adopting such a solution, the Court risks acting ultra vires . The Convention clearly sets out a division of competences. Under Article 41 of the Convention, it falls to the Court, when a violation of the Convention or its Protocols has been found, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, to afford just satisfaction to the injured party, if necessary. Article 46 § 2 of the Convention states that “ [ t ] he final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”.

Looking at the case at hand, I would make the following observations. The applicant claimed the amount of 57,408 euros (EUR) for pecuniary damage in respect of medical fees, loss of earnings, ho rmone treatment and the cost o f the eventual completion of gender reassignment surgery abroad (see paragraphs 70-71 of the judgment). The applicant further alleged that, even if the legal gaps in Lithuanian law were eventually filled, there would still be no pr ospect of completing the gender reassignment surgery in Lithuania within a reasonable time (see paragraph 71 of the judgment). So I wonder whether the imposition of an obligation upon the respondent Government to pass the required legislation would be “affording just satisfaction to the injured party”, strictly speaking. The applicant does not seem to believe this to be the case.

I am aware of the possibility for the Court to prescribe general measures in order to prevent the recurrence of similar violations in the future (see, for example, Broniowski v. Poland [GC], no. 31443/96, ECHR 2004 ‑ V , and Hutten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006 -VIII, where the violations originated in a systemic problem connected with the malfunctioning of domestic legislation, and there were many other similar cases pending before the Court as well as a great number of potential applicants). However, the present application can be distinguished from such cases, as here the Court prescribes a general measure to redress an individual complaint. Only as an alternative, should those legislative measures prove impossible to adopt within the said time-limit, is the respondent State ordered to pay EUR 40,000 in respect of pecuniary damage (see paragraph 74 and point 6 of the operative provisions ). For me, this does not afford just satisfaction to the applicant, as required by Article 41.

For these reasons I would have preferred the Court simply to order a payment in respect of pecuniary damage, and only as a secondary measure to indicate the need to pass new legislation.

DISSENTING OPINION OF JUDGE POPOVIĆ

I respectfully disagree with the opinion of the majority of the judges, for the following reasons.

Although I voted along with my colleagues in favour of the admissibility of the application in this case , I have subsequently reconsidered my opinion in the light of the parties ’ submissions at the oral hearing.

On the one hand, the applicant submitted that he had never availed himself of any domestic remed ies because of their alleged ineff ectiveness . On the other hand, the Government submitted that there ha d been a recent , convincing ruling of the Const itutional Court of Lithuania on national judicial remedies.

Faced with such facts , my approach is twofold: either one returns to the question of admissibility, or one raises of one ’ s own motion the issue under Article 13 of the Convention read in conjunction with either Article 8 or Article 3, thus thoroughly reconsidering the matter and determining whether there is an effective remedy under domestic law.

My preference would be to return to the admissibility issue with reference to paragraph 1 of “T he L aw ” part of the admissibility decision in this case, taken on 6 July 2006, which refers to the decision in Vala š inas v. Lithuania ( (dec.), no. 44558/98 , 14 March 2000 ) as the only authority. However, this precedent is clearly distinguishable from the present case. The decision on admissibility in Vala š inas in favour of an applicant who had not exhausted domestic remedies was taken after the Court had made an on- the-spot investigation into the applicant ’ s conditions of detention. In the present case the Court has merely agreed with the applicant ’ s allegation that no effecti ve domestic remedy existed. The present applicant ’ s only argu ment was founded on a legal gap in the national legal system, stemming either from a failure of the g overnment to pass subsidiary legislation or to introduce a bill to that end . However, there was, and still is, under Lithuanian law primary legislation (Article 2.27 § 1 of the Civil Code 2001) which unequivocally meets the applicant ’ s aspirations.

The applicant appears to have sought redress from the Ministry of Health, which failed to respond. In such circumstances, the applicant should have tried t o bring an action against the a dministration for failure to act, but despite being represented by a lawyer, he failed to do so .

Alleging the ineff ectiveness of domestic remedies, without any attempt to turn to the domestic judiciary, the applicant apparently relies on the idea that the courts would somehow be unwilling to find in his favour despite the existence of a clear legal provision in the Civil Code.

One can only speculate that this submission is borne of the view that the judiciary is still a relic of the former authoritarian communist regime. Such c ourts would refuse to take a constructive approach to a legal provisi on, because of the mentality of the judges, who work ed in fear of the political authorities for decades. They would therefore tend to stick to a strictly literal interpretation of the text of the written law. The applicant therefore apparently fear ed that, in the absence of specific subsidiary legislation, the national courts of law might refuse to apply primary legislation.

However, although social develop ments and adjustment take time, there is nothing to support the view that, nowadays, an applicant should be allowed by this Court to neglect the judiciary of a High Contracting Part y to the Convention by claiming its prima facie ineff ectiveness . Such an approach is wholly unjustified. On the contrary, national judges should be en couraged to take a bolder stand in interpreting domestic l egal provisions, and applicants should not be allowed to circumvent their national courts. Applicants must apply to the domestic courts before lodg ing an application with this Court.

Moreover, the Government submitted that there had been some evolutio n in the domestic case-law. It was to be found in the ruling of the Co nstitutional Court of Lithuania as regards the general issue of remedies before domestic courts of law. The Constitutional Court stated , inter alia : “ ... the courts ... which administer justice ... have to construe law so that they are able to apply it.” Further on, the Constitutional Court found that if the courts of law were not to interpret the law “it would mean that law is treated only in its textual form and is identified with the latter” (Constitutional Court of Lithuania, case 34 /03, d ecision of 8 August 2006, § 6.2.3.3) .

The majority of judges seem to be c onvinced, in the absence of any evidence whatsoever, that the courts in Lithuania would be willing to apply future legislation, if enacted after the introduction of the g overnment ’ s bill, although they might fail to apply the exis ting law. Such a belief appears groundless, especially if one takes account of the fact that the applic ant has never tried to apply to the domestic courts .

The position of the parties is as follows: t he applicant failed to exhaus t domestic remedies, preferring merely to allege their ineffectiveness , although he was unable to substantiate that all egation, whereas the Government relied on the evol ution of the domestic case-law concerning remedies.

I agree with the Government ’ s preliminary objection of non-e xhaustion of domestic remedies, and consider the application premature and , therefore, inadmis sible pursuant to Article 35 §§ 1 and 4 of the Convention.