JOINT CONCURRING OPINION OF JUDGES SPANO AND KJØLBRO

1. The present case raises an important issue concerning Article 46 of the Convention in the context of an individual application lodged with the Court that is a follow-up to an earlier judgment finding a violation of the Convention.

2. The applicants complained that by failing to repeal the relevant provisions of the KGB Act, Lithuania had failed to comply with the Court’s judgments of 27 July 2004 (nos. 55480/00 and 59330/00) and 7 April 2005 (no. 70665/01) and thereby had violated their rights under Article 46. Thus, the application raises the question whether Article 46 of the Convention confers assertable rights on individuals that may be invoked before the Court in an individual application.

3. In the judgment, the Court does not give a clear answer to that question. Instead, it concludes that the complaint under Article 46 of the Convention is closely linked to the complaint under Article 14 read in conjunction with Article 8 and therefore decides to “examine the complaint solely by reference to the latter provisions” (see paragraph 105).

4. The judgment attempts to reconcile diverging case-law of the Court in this area, in particular Emre v. Switzerland (no. 2) , no. 5056/10, 11 October 2011, and The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) , nos. 41561/07 and 20972/08, 18 October 2011. In both cases the applicants had invoked Article 46, but the Court adopted different approaches in determining whether to apply that Article to the facts. In Emre , in its reasoning and the operative provisions the Court found a violation of Article 8 “taken together with Article 46 of the Convention” (§ 77 and point 2 of the operative provisions). However, in Ilinden the Court stated that “it is very doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application” (§ 66). It thus proceeded to examine the complaint on the basis of the substantive provisions invoked by the applicants (§ 67).

5. In the judgment in the present case, the Court solves the problem of this divergence of case-law by distinguishing this case from Emre and following the approach adopted in Ilinden . However, in our view, the Court should rather have stated clearly that Article 46 does not confer assertable rights on individuals that may be invoked before the Court in an individual application. For the reasons explained below, such reasoning would in our view have been more in accordance with the wording and purpose of Article 46 of the Convention and the Court’s case-law.

6. The High Contracting Parties have undertaken to abide by final judgments of the Court in any case to which they are parties (Article 46 § 1 of the Convention). This implies a legal obligation for the respondent State not just to pay the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004 ‑ VII).

7. It falls within the competence of the Committee of Ministers to supervise the execution of a final judgment of the Court (Article 46 § 2 of the Convention). Therefore, the Court cannot deal with a complaint from an individual about a failure by the State to execute a judgment of the Court or to redress a violation already found by the Court. Such a complaint will, in accordance with the Court’s case-law, be declared inadmissible ratione materiae with the provisions of the Convention (see, for example, Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010; Steck-Risch and Others v. Liechtenstein (dec.) no. 29061/08, 11 May 2010; Günes v. Turkey (dec.), no. 17210/09, 2 July 2013; and Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 35, ECHR 2015).

8. However, the role of the Committee of Ministers in the sphere of execution of the Court’s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment (see Bochan , cited above, § 33). Thus, the Court may, for example, entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009).

9. The fact that the Court may deal, in the context of a fresh application, with relevant new information that is capable of giving rise to a fresh violation of the Convention does not alter the fact that the Court cannot, as mentioned, deal with a complaint alleging failure to execute one of its judgments or to redress a violation already found by it.

10. This interpretation of the Court’s jurisdiction in individual applications is also supported by Article 46 § 4 of the Convention, enacted by Protocol No. 14, which provides that the Committee of Ministers, under certain conditions, may institute infringement proceedings in the Court against a State that, in the view of the Committee of Ministers, refuses to abide by a final judgment in a case to which it is a party. In such cases it is for the Court to decide whether the State has failed to fulfil its obligations resulting from the judgment finding a violation of the Convention. As stated by the Court in Bochan (cited above, § 33), “[t]he question of compliance by the High Contracting Parties with the Court’s judgments falls outside its jurisdiction if it is not raised in the context of the ‘infringement procedure’ provided for in Article 46 §§ 4 and 5 of the Convention”.

11. In the original judgments of 27 July 2004 and 7 April 2005, which were referred to by the applicants in the present case, the Court found that the ban on the applicants seeking employment in various branches of the private sector, in application of section 2 of the KGB Act, constituted a violation of Article 14 read in conjunction with Article 8 and ordered the State to pay compensation to them.

12. It falls within the competence of the Committee of Ministers to assess whether Lithuania has failed to fulfil its obligations resulting from the judgments of 27 July 2004 and 7 April 2005 by not repealing the relevant provisions of the KGB Act. This does not, however, preclude the Court from assessing whether the consequences of the KGB Act in the applicants’ case amounted to a fresh violation of Article 14 read in conjunction with Article 8, as indeed the Court has done in the present case.

13. Therefore, and to conclude, the Court should, in our view, have stated clearly that Article 46 of the Convention does not confer assertable rights on individuals that may be invoked before the Court in an individual application. We admit that this would entail a departure from Emre , but it would, in our view, be in accordance with the wording and purpose of Article 46 of the Convention and the Court’s case-law.