JOINT PARTLY DISSENTING OPINION OF JUDGE S TULKENS, CABRAL BARRETO AND ZAGREBELSKY

Regarding the application of Article 41 of the Convention, we think that the judgment should have adopted the same decision as in Sidabras and Džiautas v. Lithuania of 27 July 2004 and Rainys and Gasparavičius v . Lithuania of 7 April 2005 , which concerned similar issues .

The finding of a violation of Article 14 of the Convention taken together with Article 8 does not, in our opinion, afford sufficient redress and the applicant should have received compensation for the pecuniary and non-pecuniary damage incurred .

DISSENTING OPINION OF JUDGE S JOČIENĖ, TSOTSORIA AND SAJÓ

To our regret, we cannot subscribe to the Chamber ’ s finding of a violation of Article 14 of the Convention in conjunction with Article 8.

1. We agree with the Chamber ’ s finding in paragraph 30 of the judgment that the restrictions imposed on the applicant ’ s employment prospects under the Law, and hence the difference in treatment applied to him, pursued the legitimate aims of the protection of national security, public safety, the economic well-being of the country and the rights and freedoms of others (see Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, §§ 52-55, ECHR 2004 ‑ VIII ).

2. The main question to be answered is whether the impugned restrictions on the applicant ’ s private-sector employment prospects constituted a proportionate measure with regard to the State ’ s legitimate aim and whether the State struck a fair balance in weighing up the interests involved. As to the justification for th e distinction of status , the Government ’ s main argument was that the application of the Law was well - balanced in view of the legitimate interest in protect ing the national security of the State, the impugned employment restrictions being imposed o n persons such as the applicant by reason of their lack of loyalty to the State. We would emphasise , however, that State-imposed restrictions on a person ’ s opportunit ies to find employment in the private sector by reason of a lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to employment in the public service ( see Rainys and Gasparavičius v. Lithuania , nos. 70665/01 and 74345/01, § 36, 7 April 2005) .

3. Nevertheless, we note that the present application must be distinguished from previous cases against Lithuania with the same subject-matter. In the above-mentioned cases of Sidabras and Džiautas and Rainys and Gasparavičius , the applicable legislation dealt with former employees of former Soviet security services. Unlike the Law applicable to former employees that was reviewed by the Court in those cases , the Law applicable in the present case, in our opinion, was intended also to protect collaborators of the “special” (security) services of the former Soviet Union . The personal motives for becoming an informer may range from envy, political loyalty or conformism, to material or any other interests. Some of them may have simply been victims of the regime. The collaboration may have had tragic consequences on the fate of those who were denounced, while in other cases the consequences were quite trivial.

In the above-mentioned cases of Sidabras and Džiautas and Rainys and Gasparavičius , the Law provided for a clearly unconditional ban on their employment in various branches of the private sector and, consequently, the Court found such a ban with regard to the private sector to be a disproportionate and thus discriminatory measure, despite the legitimacy of the aims pursued by the State in imposing that ban (see Sidabras and Džiautas , § 61, and Rainys and Gasparavičius , § 36-37).

The Law applicable in the present case, however, is also concerned with one particular consequence of past secret collaboration, namely the fact that all secret collaborators might be open to blackmail. One of the intentions of the Law is to prevent private and institutional blackmail and, as such, it serves national security considerations too. Further, it could be considered that admission of past collaboration furthers national reconciliation and helps to make good past injustices.

4. As regards the circumstances of the present case, we observe that the private-sector employment ban was not unconditional. Pursuant to Article 6 § 1 of the Law, the “former secret collaborators” had a time-limit of six months in which to admit to their collaboration to the State authorities. Furthermore – a very important aspect to be taken into account – only if a person failed to admit to such collaboration within the prescribed time-limit were Articles 8 § 4 and 9 of the Law to be applied. In such circumstances, the fact of collaboration was to be published in the “Official Gazette” and, consequently, that individual would then be prevented from pursuing certain types of professional activities in the private sector. In the present case the applicant had failed to admit to his collaboration. This resulted in the fact of his collaboration with the special services of the former USSR being published in the “Official Gazette”. We note that the applicant had not presented any arguments which would explain and/or justify his failure to admit to his past collaboration, or his attempt to circumvent a legitimate r equirement imposed on him by the Law. He could not deny the fact of his previous collaboration , notwithstanding the availability of a fair judicial procedure and access to his personal file . Furthermore , the admission of past collaboration in itself would not have led to any penalt ies. On the contrary, had the applicant admitted to his collaboration, that fact would have remained secret and he would not have faced any employment-related restrictions. The non-public admission of reproachable past behaviour does not result in negative consequences, and it does not therefore raise concerns of unfair criminal proceedings (contrast Matyjek v. Poland , no. 38184/03, §§ 57-65 , ECHR 2007 ‑ ... ) or punishment. On the contrary, in our opinion, it grants former collaborators certain advantages in terms of reputation and offers protection against possible blackmail.

5. Moreover, we have regard to the fact that, when balancing the interests of national security against those of a collaborator, the State had adopted safeguards to protect that individual from the detrimental misuse of such information. In particular, Article 7 § 2 of the Law provided that t he fact of admission of collaboration and any information submitted by the individual concerned were to be treated as S tate secret s and to remain classified. Pursuant to Article 8 § 2 of the Law, State authorities had an obligation to protect such persons in cases where they experience d blackmail or attempts to draw them into illegal activities . We find these precautions sufficient to guarantee the individual ’ s right to respect for private life.

6. Accordingly, having regard to the legitimacy of the aims pursued by the State and an overall assessment of the proportionality of the measures provided for in the Law, and especially, the possibility of a discharge in respect of past behaviour (see Article 6 § 1 of the Law), we cannot find that the restrictions placed on the applicant ’ s employment – even in the private sector – because of his failure to comply with the requirements of the Law were disproportionate and thus discriminatory. The State cannot be held responsible for the failure of the applicant to comply with the Law.

7. Consequently, we are of the view that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8.