CONCURRING OPINION OF JUDGE KŪRIS

1. This case is a borderline one. While I have no hesitations regarding the finding of a violation of Article 6 § 1 of the Convention, it was not without a certain uneasiness that I voted for the decision to declare the applicant’s Article 8 complaint inadmissible. The Court’s response to the applicant’s query could well have been instead that this complaint was admissible and, furthermore (but, of course, hypothetically), that there had been a violation of Article 8.

Such an alternative turn would have been somewhat natural slightly more than three years ago.

I

2. Not so long ago the Court’s case-law was steadily developing in the direction of expanding the applicability of Article 8. That expansion was not always easily justifiable. At times it was not justifiable at all – in the cases where the Court held that Article 8 was applicable even to situations in which an objective observer would have had difficulty guessing what was so “private”, in the proper sense of the word , in the applicant’s grievances, this allowed him or her to fall under the protection of the right to respect for private and family life, enshrined in Article 8. In particular, the notion of “private life” was extended to embrace virtually any act by the authorities vis-à-vis an individual, as a participant in the labour market or as member of a profession or holder of any other official function.

But that was then.

3. In my dissenting opinion in Erményi v. Hungary (no. 22254/14, 22 November 2016) I argued that the perspective of examining privacy in terms of the right and value protected by Article 8 had to be returned to its natural angle: 8 should indeed be seen as 8, not like ∞, the sign of infinity.

II

4. Had the present case been examined at the time when that most expansive interpretation of the scope of applicability of Article 8 was flourishing, it is very likely that Ms Gražulevičiūtė’s complaint under that Article would have been declared admissible.

That admissibility could have been substantiated along the following lines.

5. Apart from working as a rheumatologist, the applicant also worked as a clinical researcher. The Government insisted that, whilst suspended, she could have continued working as a rheumatologist or in another job as a doctor. Nevertheless, this opportunity, as such, hardly counterbalanced the applicant’s ability to choose to work as a clinical researcher (in particular, as under Article 48 of the Lithuanian Constitution individuals may freely choose their jobs). From the fact that the applicant had been contracted to take part in the first and the second clinical trials, and in the second trial she was supposed to be the principal researcher, it would also be not unreasonable to hold that she had the necessary qualifications for such work. Accordingly, weight could, or, rather, should, be given to the applicant’s argument that she saw a career as a clinical researcher as a professional challenge and a means towards self-improvement. In this respect it must be mentioned that the notion of “private life” may include professional activities (see Fernández Martínez v. Spain [GC], no. 56030/07, § 110, ECHR 2014 (extracts)) and that Article 8 protects the right to personal development (see Gillberg v. Sweden [GC], no. 41723/06, § 66, 3 April 2012; and Bărbulescu v. Romania [GC], no. 61496/08, § 70, ECHR 2017 (extracts), and the case-law cited therein). Article 8 likewise protects the right to establish and develop relationships with other human beings and the outside world (see Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018). The applicant has plausibly argued that her suspension, which, in addition, had been made public on the website of the State Medicines Control Agency (“SMCA”), caused a loss of trust in her as a medical professional by sponsors of clinical trials (compare Platini v. Switzerland (dec.), no. 526/18, § 57, 11 February 2020). Although the parties disagreed as to the percentage of her annual income for which her work as a clinical researcher had accounted, that quantification does not seem to be necessary, since in any case it is clear that, at least for her work on the first clinical trial, the applicant should have received the sum of EUR 6,128, which cannot be regarded as insignificant. (In addition, although the Government have not explicitly argued that by not having started separate court proceedings for damage caused to her reputation the applicant did not exhaust domestic remedies, she raised this aspect within the court proceedings for damages.) That being so, the orders for the applicant’s suspension could be assessed as having seriously affected her private life.

Accordingly, Article 8 of the Convention could be held to be applicable to the applicant’s complaint, and her complaint (being neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35) could therefore be declared admissible.

III

6. As mentioned above, in the light of the Court’s case-law as it stood three years ago the Court could also have found a violation of Article 8 on account of the disproportionate nature of the interference with the applicant’s right to respect for her private life.

The reasoning behind that finding could have been the following.

7. In Denisov (cited above), the Court dealt with an employment-related dispute between an individual and a State, where the decision to dismiss the person was taken by a State authority. It held that once such a measure was found to have seriously affected the person’s private life, that conclusion meant that the complaint was compatible ratione materiae with the provisions of the Convention and, at the same time, that the measure constituted an “interference” with the “right to respect for private life” for the purpose of the three-limb merits test under Article 8: assessment of the lawfulness, legitimate aim and necessity of such “interference” (§ 92).

8. In the light of this methodology, Ms Gražulevičiūtė’s suspension from working as a clinical researcher constituted an “interference” with the “right to respect for her private life” for the purpose of the three-limb merits test under Article 8.

9. Moreover, her suspension from working as a clinical researcher, notwithstanding its subsequent annulment, was based on the provisions of the Description of Control Procedure (as was also noted by the domestic courts) and thus the interference had a basis in law.

10. It could also be accepted that the interference pursued the legitimate aim of protecting the rights of patients, since from the Law on Ethics of Biomedical Research (Article 5 § 1); the Good Clinical Practice Rules (point 2.3), the Oviedo Convention on Human Rights and Biomedicine (Article 2) and the provisions of Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001 (“the Directive”) it follows that a person’s interests and well-being prevail over those of society and science (this had been pointed out by the Supreme Administrative Court).

11. The turning-point would have been where the Court had to address the issue of the necessity and proportionality of the interference in question. I believe that, had the Court reached that stage, it could have appeared that there were solid reasons for finding a violation of Article 8.

12. In the light of the death of V.S., a patient who had been taking part in the clinical trial of tocilizumab, a medical product, conducted by the applicant together with other clinical researchers, it was not only necessary but also obligatory to investigate the circumstances in which the loss of life had occurred. This positive obligation of the State stemmed from Article 2. The States’ obligation to protect clinical trial subjects and to suspend a clinical trial where the State has objective grounds for doubting that the conditions for the safety of the clinical trial are being met have been clearly established in Articles 2 and 12 of the Directive. The necessity for the State to take measures to guarantee that the rights, safety and well-being of the individuals taking part in a clinical trial are being properly protected is also prescribed in domestic law, namely in the Good Clinical Practice Rules (point 3.1.1) and the Law on Pharmacy (Article 18 § 14).

That being so, the circumstances leading to V.S.’s death had been examined firstly during a pre-trial investigation, and secondly during administrative court proceedings for annulment of the SMCA orders for the applicant’s suspension. As noted by the experts during the pre-trial investigation, V.S. died of sepsis which developed “as fast as lighting”, and, most importantly, was not caused by the applicant’s actions or failure to act. Likewise, during the first set of administrative court proceedings, her actions were again examined. That examination included analysing medical documents and questioning of witnesses, and again a conclusion was reached that V.S.’s death had not been the result of the applicant’s actions or her failure to act.

Against this background (and bearing in mind that it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them), the applicant’s suspension, whilst initially justified, became unjustified from the moment the SMCA orders were annulled by the Vilnius Regional Administrative Court’s decision.

13. However, that annulment did not in itself erase all the consequences of the applicant’s suspension. The Court therefore could, or even should, have focused on the question of redress, that is to say, whether, once exculpated by the court during the first set of administrative court proceedings, the applicant should have been compensated for her suspension.

14. The applicant’s suspension from working as a clinical researcher lasted nearly two years (from 10 January 2012 to 21 December 2013), when the Vilnius Regional Administrative Court’s decision annulling the SMCA’s orders for her suspension became final. Whilst during that time the applicant could have worked as a doctor (rheumatologist), it could, or perhaps should, not be overlooked that the applicant, in her own submission, saw a career as a clinical researcher as important for her professional self-fulfilment as well as a way to earn a living.

Her suspension was based on the inspectors’ finding that she had committed two critical (dangerous) violations of the Good Clinical Practice Rules. As acknowledged by the SMCA during the first set of administrative court proceedings, it was those two (alleged) violations that were pertinent for her suspension – any other possible failings attributable to the applicant could not have been grounds for suspension. It follows that, once those two dangerous (critical) violations held against the applicant had been annulled owing to a flawed interpretation of events by the inspectors, the grounds for her suspension could no longer be considered necessary. Therefore, it would be very difficult to be convinced by the Government’s argument that the applicant’s actions included additional failings and thus the Supreme Administrative Court had been correct in finding that the interference with her rights as a researcher had been proportionate.

15. The case referred to by the Government (see paragraph 59 of the judgment) was also different in the sense that, in that case, even if the plaintiff’s suspension had been lifted, the imposition of another disciplinary sanction – a reprimand – had been endorsed. In the instant case no disciplinary sanction whatsoever was imposed on the applicant.

Thus, having regard to its conclusion that in the applicant’s case the principle of legal certainty was breached (see paragraphs 82 and 83 of the judgment), the Court should have relied, as final and valid, on the Vilnius Regional Administrative Court’s verdict that the restrictions on the applicant’s working as a clinical researcher had been imposed “unjustly”, and as a consequence of the erroneous and subjective assessment of facts by the inspectors.

16. Consequently, the Court could have held that, by refusing the applicant’s claim for compensation for pecuniary and non-pecuniary damage, which she maintained she had sustained owing to her suspension, the Supreme Administrative Court disproportionately placed the burden of the mistake of the SMCA, a State authority, on the applicant.

17. Within the second set of administrative court proceedings the question of the amount of pecuniary damage, consisting of income not received because of what the Vilnius Regional Administrative Court adjudged to be “unlawful actions” on the part of the SMCA, and in connection with the first clinical trial, was examined and explained by the Vilnius Regional Administrative Court. Bearing in mind the interpretation of the obligation to compensate for damage caused by the State institutions’ and officials’ unlawful actions, this obligation having been set out by the Constitutional Court in its ruling of 19 August 2006, reinforced in its ruling of 19 March 2021, and very recently scrutinised by the Court in the judgment of Černius and Rinkevičius v. Lithuania (nos. 73579/17 and 14620/18, §§ 26 and 71, 18 February 2020), the Court would have needed very strong reasons to depart from the Vilnius Regional Administrative Court’s findings. I fail to see any such reasons, but, as I mentioned, this alternative line of reasoning is hypothetical, because the Court has not reached this stage of examination of the applicant’s Article 8 complaint.

18. That being so, I am inclined to tentatively maintain that, unlike the position regarding the first clinical trial, the refusal to compensate the applicant for the second clinical trial could not be regarded as disproportionate, because, as established by the Vilnius Regional Clinical Court, that trial had not taken place.

19. Last but not least, the Government argued that during her suspension the applicant had been on maternity leave which, in their view, would have in any case hindered her from performing the duties of a clinical researcher. This suggestion was contested by the applicant, who stated that there was no prohibition on a clinical researcher working as such during maternity leave. Her position is also supported by the Vilnius Regional Administrative Court, which rejected V.S.’s daughters’ argument, similar to that of the Government, in holding that even if the applicant had been on maternity leave, she had still continued seeing the five patients who had taken part in the first clinical trial and moreover had successfully brought that clinical trial to a conclusion

The Court has very recently held that, as a matter of principle, even where the availability of an employee was a precondition for the proper performance of an employment contract, the protection afforded to a woman could not be dependent on whether her presence at work during maternity leave was essential for the proper functioning of her employer or by the fact that she was temporarily prevented from performing the work for which she had been hired (see, mutatis mutandis , Jurčić v. Croatia , no. 54711/15, § 76, 4 February 2021).

Accordingly, the Court could, or should, have dismissed the Government’s argument that, given the fact that the applicant went on maternity leave, her suspension did not disproportionately affect her interests.

IV

20. But that would have been then, and now is now.

The game-changer was Denisov v. Ukraine (cited above), the judgment in which, while reiterating what had long been the Court’s case-law and admitting that “it would be too restrictive to limit the notion of ‘private life’ to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle” (§ 96), the Grand Chamber revisited and fine-tuned the Court’s standards of Article 8 applicability in employment-related disputes (§§ 92-117). There is no need to repeat them here, as they are referred to in the present judgment.

21. I have previously expressed my approval of the change in the Court’s course, from one which by then had reached the level of virtual all-inclusiveness of Article 8 towards a more nuanced, more qualified and more common sense-friendly (in the sense that it is closer to the meaning of the word “private”) approach, based on what can be called the Denisov standards for the applicability of Article 8 in employment-related disputes (I refer to my dissenting opinions in Brisc v. Romania , no. 26238/10, 11 December 2018 joined by Judge Yudkivska, and in Nicolae Virgiliu Tănase v. Romania , [GC] no. 41720/13, 25 June 2019).

And yet one must acknowledge that, to hope that the said standards, refined as they now are, may have completely put an end to the erstwhile and even very recent spilling in all directions of Article 8 case-law, would be very very very optimistic. One could legitimately ask whether such optimism would embrace realism. For there are – and always will be – bigger or smaller deviations from these standards. Still, the process of spilling over on all fronts, undesirable and sometimes mysterious as it was, has been constrained within certain reasonable limits and significantly slowed down.

Under the Denisov standards, the applicability threshold has become clearer, more elaborate, and – not so easy to reach. I believe that under these refined and, in my opinion, consistent standards today, not only no Erményi (cited above), in which the all-inclusiveness of Article 8 had reached its extreme, would be possible, but one could even question whether a violation of Article 8 (in conjunction with Article 14) would be so easily found in such cases as, say, Sidabras and Others v. Lithuania (nos. 55480/00 and 59330/00, 27 July 2004) or its sequels Rainys and Gasparavičius v. Lithuania (nos. 70665/01 and 74345/01, 7 April 2005) and Žičkus v. Lithuania (no. 26652/02, 7 April 2009). But that would be guesswork.

22. What is pertinent to the present case is that under the Denisov standards it is indeed possible to substantiate that Ms Gražulevičiūtė’s complaint under Article 8 is inadmissible, as it can be argued – if not conclusively, then at least with not a little degree of persuasiveness – that her suspension from working as a clinical researcher had limited negative effects on her private life and did not reach the requisite threshold of seriousness for Article 8 to be applied, and therefore that her complaint must be dismissed as incompatible ratione materiae with the Convention.

23. As I have already mentioned, this is a borderline case. The Chamber chose to place itself on one side of the borderline and not on the other. There are no strong reasons why it could not make such a choice.

But the Chamber’s choice could have been different, because the Denisov standards, at least in my reading, would not fully exclude such a possibility, given all the factual circumstances of the present case. Had the Chamber chosen to place itself on the other side of the borderline, perhaps even the Denisov standards would not have offered very strong reasons against such a choice.

24. It is often said that hard cases make bad law. Less often (if ever) is this commonplace adage subjoined by a reservation that this generality has exceptions.

The present one is a hard case. However, owing to the ultimate finding of a violation of Article 6 § 1, I tend to view it, seen overall, as one of the (perhaps indeed rare) exceptions to the above-mentioned generality – not only because the Convention right to a fair trial of this particular applicant was protected, but also because the said finding of a violation of Article 6 § 1 and the reasoning underlying it serve to enhance and reinforce the principles of legal certainty and res judicata . Those principles are called upon to secure the materialisation of the fundamental tenet of the rule of law and its rapprochement with substantive justice, namely that, when applied in practice, the rule of law has fewer gaps through which substantive injustice so often manages to pass – sometimes to the detriment of victims of judicial manoeuvring.