JOINT DISSENTING OPINION OF JUDGES SAJÓ, VUČINIĆ AND GARLICKI

1. To our regret, we cannot agree with the majority’s finding that there has been no violation of Article 14, taken in conjunction with Article 8, on account of the inability of the first and second applicants to obtain employment in the private sector.

In our opinion, this case raises at least two serious problems of interpretation of the Convention, but neither of them have been resolved in a satisfactory manner.

2. The position of the majority is based on the finding that neither the first nor the second applicant “plausibly demonstrate[d] that a discriminatory act [had] occurred” (paragraph 107). Only after such a “plausible demonstration” has been successfully made by an alleged victim, and only then, will the burden of proof shift to the Government. The majority refer here to paragraph 36 of the Rainys and Gasparavicius v. Lithuania judgment (nos. 70665/01 and 74345/01, 7 April 2005), but it should be noted that the term “plausibly demonstrated” is absent from that paragraph.

We are not convinced that the “plausible demonstration” requirement can be applied in the present case. Both of the applicants in question claimed to be victims of the continuing existence of the KGB Act. As the Court has held on several occasions (starting with the Klaas [3] , Marckx [4] and Dudgeon [5] cases), the mere existence of legislation permitting interference with a Convention right may be sufficient to confirm the standing of all those who are affected by it. Therefore, a practical attempt to circumvent such legislation cannot necessarily be required. This would be particularly problematic in situations where such an attempt could expose the applicant (or any cooperating persons) to a criminal or administrative penalty. In such situations, applicants can only be required to demonstrate that they fall within the scope of the disputed legislation.

3. There is no doubt that the applicants, as former KGB agents, fell at the material time within the scope of the KGB Act. This was also confirmed by the Court in its 2004 and 2005 judgments.

In our opinion, nothing changed in the applicants’ situation following those judgments, at least not until the expiry of the KGB Act. Although the Government informed the Committee of Ministers of their intention to amend the Act, no modification took place. It is true that the Supreme Administrative Court expressed an opinion that the Court’s judgments prevailed over the KGB Act, thus removing the employment ban imposed by the Act. However, a practical attempt by the third applicant failed as the Supreme Court held that the refusal to reinstate him was unlawful, but nevertheless valid (“while the KGB Act ... is still in force, the question of reinstating ... may not be resolved favourably” – see paragraph 58 of the judgment). It can reasonably be assumed that, had the first and second applicants attempted to obtain one of the “proscribed employments”, the same conclusion would have applied to their cases. It seems that there was no effective remedy available to the applicants and that, therefore, they could not be expected to bring legal proceedings with no prospect of success.

It should also be noted that, since under the KGB Act a potential private-sector employer risked an administrative penalty, the prospects for the applicants to be recruited were at best illusory.

This state of the domestic law and jurisprudence should be regarded as a sufficient demonstration that the first and second applicants continued to be affected by the employment ban. This shifts the onus to the Government and it seems obvious that the Government were not able to plausibly demonstrate that no discrimination had taken place in those applicants’ cases.

4. The lack of any practical attempt to test the continuous applicability of the KGB Act does not remove the victim status of the first and second applicants.

5. Therefore, a violation of Article 14 in conjunction with Article 8 should have been found in the present case. In our opinion, the mistake of the majority was to apply the “plausible demonstration” requirement to a case in which legislation constituted the direct source of interference. This mistake is, at least in part, due to the lack of clearly established criteria on “victim status” and “practical attempts” in such cases. As the present judgment may contribute to further confusion, it may be time for the Grand Chamber to clarify the issue.

6. Nor is there any clarity as to the question whether there can be a separate violation of Article 46. There are conflicting approaches in the case-law and it may now be appropriate for the Grand Chamber to intervene in the Emre [6] ‑ Ilinden [7] controversy, as also observed in Judge Keller’s separate opinion. The present case would offer a perfect opportunity for such intervention. The original judgments have not been implemented, the Committee of Ministers has been unable to ensure compliance, and the situation has evolved into a continuous (or new) violation.

7. In brief, we are not only of the opinion that the case was wrongly decided. We are also convinced that both of the above-mentioned problems should be characterised as serious questions affecting the interpretation and application of the Convention within the meaning of Article 43 § 2 of the Convention and, therefore, should attract the interest of the Grand Chamber.

[1] Background Paper prepared by the Organising Committee for the Opening Seminar of the Judicial Year of the ECHR, 31 January 2014, Implementation of the Judgments of the European Court of Human Rights: A Shared Judicial Responsibility? (available at http://www.echr.coe.int/Documents/Seminar_background_paper_2014_ENG.pdf).

[2] Linos-Alexander Sicilianos, ‘The Involvement of the European Court of Human Rights in the Implementation of its Judgments: Recent Developments Under Article 46 ECHR’, 32 Netherlands Quarterly Of Human Right s 3 (2014), 234–262.

[3] Klaas v. Germany , 22 September 1993, Series A no. 269.

[4] Marckx v. Belgium , 13 June 1979, Series A no. 31

[5] Dudgeon v. the United Kingdom , 22 October 1981, Series A no. 45

[6] Emre v. Switzerland (no. 2) , no. 5056/10, 11 October 2011.

[7] The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) , nos. 41561/07 and 20972/08, 18 October 2011.