CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 janvier 2004

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Ress , President ,   Mr   J.-P. Costa ,   Mr   R. Türmen ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mrs   H.S. Greve, judges , and Mr V. Berger , Section Registrar , Having regard to the above applications lodged on 19 January 2001 and 31 July 2001 respectively, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the appointment of Mr J.-P. Costa to sit in respect of Lithuania, Having deliberated, decides as follows: THE FACTS The first applicant, Mr   Raimundas Rainys, is a Lithuanian national, who was born in 1949 and lives in Vilnius. He is represented before the Court by Mr A. Paškauskas, a lawyer practising in Vilnius. The second applicant, Mr Antanas Gasparavičius, is a Lithuanian national, who was born in 1945 and lives in Kretinga.   A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows.   1. The first applicant   From 1975 until October 1991 the first applicant worked at the Soviet State Security Committee (hereinafter referred to as the “KGB”). Thereafter he worked as lawyer in a private telecommunications company.     On 17 February 2000 two authorities - the Lithuanian State Security Department and the Centre for the Research of Genocide and Resistance of the Lithuanian   People - reached a joint “conclusion” ( išvada ) whereby they found that the first applicant was subject to restrictions under Article 2 of the Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Permanent Employees of the Organisation (hereinafter referred to as “the Act”, see the ‘Relevant domestic law and practice’ section below) in that he had been an employee of the KGB. On 23 February 2000 the first applicant was dismissed from the job at the telecommunications company. The first applicant brought an administrative action against the security intelligence authorities, claiming that the “conclusion” was invalid, and that his dismissal had been unlawful. On 29 June 2000 the Higher Administrative Court rejected the first applicant’s action, finding that he had indeed worked in the KGB, and that he had remained employed with that organisation during a period after the declaration of independence of Lithuania on 11 March 1990. The court confirmed the lawfulness of the “conclusion” and the first applicant’s ensuing dismissal. Upon the first applicant’s appeal, on 5 September 2000 the Court of Appeal upheld the judgment.     2. The second applicant   From 1971 until October 1991 the second applicant worked at the KGB. In October 1991 the second applicant started practising as a barrister.   On an unspecified date in 2000 the Lithuanian State Security Department and the Centre for the Research of Genocide and Resistance of the Lithuanian People reached a joint “conclusion” whereby they found that the second applicant was subject to restrictions under Article 2 of the Act in that he had been an employee of the KGB. On 12 June 2000 the Bar informed him that he would be disbarred pursuant to the above law.   The second applicant brought an administrative court action, claiming that his dismissal from the Bar would be unlawful. While the second applicant had not contested the fact that he had worked for the KGB even following the declaration of Lithuanian independence of 11 March 1990, he submitted that thereafter he had worked as an informer for the authorities of independent Lithuania. Furthermore, throughout his time at the KGB the second applicant had allegedly only worked with cases concerning purely criminal investigations, not political persecutions. In the second applicant’s view, he had been entitled to exceptions from the employment restrictions in accordance with Article 3 of the Act (see the ‘Relevant domestic law and practice’ section below).   On 21 February 2001 the Vilnius Regional Administrative Court rejected the second applicant’s claim. The court found that the second applicant had indeed worked with criminal investigations while at the KGB, but that he had remained employed there until his retirement in October 1990. The court held that the exceptions in Article 3 of the Act were not applicable in regard to the second applicant, given that he had not discontinued his employment with the organisation immediately after the declaration of Lithuania’s independence of 11 March 1990. The proceedings before the first instance court were not public. They were conducted in the presence of the second applicant and the representatives of the Lithuanian State Security Department and the Centre for the Research of Genocide and Resistance of the Lithuanian People. Certain witnesses were questioned in the course of the proceedings.   Upon the second applicant’s appeal, on 16 May 2001 the Supreme Administrative Court upheld the lower judgment in a public hearing. The court reiterated that the second applicant was not entitled to exceptions within the meaning of Article 3 of the Act in that he had not discontinued his KGB employment immediately after 11 March 1990, and that there was no plausible evidence attesting that thereafter the second applicant had worked at the KGB as an agent of the authorities of independent Lithuania.    As a result of the proceedings on 29 May 2001 the second applicant was disbarred. B.     Relevant domestic law and practice The Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Permanent Employees of the Organisation ( Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos ) was adopted on 16 July 1998 by the Lithuanian Seimas (Parliament) and promulgated by the President of the Republic. The Act reads as follows: “ARTICLE 1 Recognition of the USSR State Security Committee as a criminal organisation The USSR State Security Committee (NKVD, NKGB, MGB, KGB - hereinafter SSC) is recognised as a criminal organisation, having committed war crimes, genocide, repression, terror and political persecution on the territory of Lithuania occupied by the USSR.     ARTICLE 2 Restrictions of the present activities of permanent employees of the SSC Former employees of the SSC, for a period of 10 years from the date of the entry into force of this law, cannot work as public officials or functionaries in government, local or defence authorities, the State Security department, police, prosecution, courts, diplomatic service, customs, State control and other authorities monitoring public institutions, as lawyers and notaries, in banks and other credit institutions, strategic economic objects, security companies (structures), other companies (structures) providing detective services, communications system, educational system as teachers ... or heads of those institutions[;] they also cannot perform a job requiring a weapon.         ARTICLE 3 Cases in which the restrictions shall not be applied 1. Restrictions provided for in Article 2 shall not be applied in regard to those former permanent employees of the SSC who, while working at the SSC, investigated only criminal cases and who discontinued their work at the SSC not later than 11 March 1990.   2. The Centre for the Research of Genocide and Resistance of the Lithuanian   People and the State Security Department can [recommend by] a reasoned application that no restrictions under this law be applied in regard to those former permanent employees of the SSC who, within 3 months from the date of the entry into force of this law, reported to the State Security Department and disclosed ... all their knowledge about their former work at the SSC and current relations with former SSC employees and agents. A decision in this respect shall be taken by a commission of three persons formed by the President of the Republic. No employees of the Centre for the Research of Genocide and Resistance of the Lithuanian   People or the State Security Department can be appointed to the commission. The rules of the commission shall be confirmed by the President of the Republic.    ARTICLE 4 Procedure for the implementation of the law Procedure for the implementation of the law shall be governed by [a special law]. ARTICLE 5 Entry into force of the law This law shall come into effect on 1 January 1999.” Following the examination by the Constitutional Court of the compatibility of the law with the Constitution (see below), on 5 May 1999 Article 3 of the Act was amended to the effect that even those individuals who had worked at the KGB after 11 March 1990 could be proposed for non-application to them of the restrictions specified in Article 2. On 16 July 1998 a separate law on the implementation of the Act was adopted. According to that law, the Centre for the Research of Genocide and Resistance of the Lithuanian People and the State Security Department were empowered to reach a “conclusion” on the status of person as a former permanent employer of the KGB for the purposes of the Act. On 26 January 1999 the Government adopted a list of positions in various branches of the KGB on the territory of Lithuania attesting to a person’s status as a former permanent employer of the KGB for the purposes of the Act. 395 different positions were listed in this respect.   On 4 March 1999 the Constitutional Court examined the issue of the compatibility of the Act with the Constitution. The Constitutional Court held in particular that the Act was adopted in order to carry out “security cleansing” measures on former Soviet security officers and to determine their loyalty to the Lithuanian State Service. The Constitutional Court decided that the prohibition on former KGB agents occupying public posts was compatible with the Constitution. It further ruled that the statutory ban on the occupation by former KGB employees of jobs in certain private sectors was also compatible with the constitutional principle of free choice of profession in that the State was entitled to lay down specific requirements for persons applying for work in the most important economic areas in order to ensure the proper functioning of the national security, education and finance systems. The Constitutional Court held, in addition, that the restrictions under the Act did not amount to a criminal charge against former KGB agents. While the Act does not specifically guarantee a right to a court to contest the conclusion of the security intelligence authorities, it was recognised by the domestic courts that, as a matter of practice, a dismissal from employment in the public service on the basis of that conclusion gave rise to an administrative court action (and a further appeal) under the general procedure governing industrial disputes and alleged breaches of personal rights by the public authorities, pursuant to Articles 4, 7, 8, 26, 49, 50, 59, 63 and 64 of the Code of Administrative Procedure, Article 222 of the Civil Code and Article 336 of the Code of Civil Procedure (as effective at the material time). COMPLAINTS 1. Under Article 6 of the Convention the applicants complain that the domestic proceedings in their cases were of “criminal” nature. The applicants allege that the proceedings were unfair, and that their presumption of innocence was not respected. In this respect the applicants complain that the proceedings were based on a presumption of guilt because they had to apply to a court to claim unlawfulness of the “conclusion” of the authorities. They further allege that during the proceedings the burden of proof was laid on them to prove their innocence, in breach of Article 6 § 2 of the Convention. Under Article 6 of the Convention the second applicant also complains that the proceedings were not public. He complains in addition that the principle of the equality of arms was breached in that he had no access to and could not contest the material on the basis of which the “conclusion” was reached. The second applicant finally submits that Article 6 § 3 was breached because he could not question witnesses. 2. Under Article 7 of the Convention the applicants complain that as a result of the proceedings under the Act they lost their employment as, respectively, a lawyer at a private company and barrister, and that their employment prospects were thereafter seriously restricted. In the applicants’ view, they were thus retroactively convicted of a crime.   3. Under Article 8 of the Convention, taken alone and in conjunction with Article 14, the applicants complain about the current ban under Article 2 of the Act on their finding employment in various private sector spheres. 4. Under Articles 10 and 14 of the Convention the applicants further complain about their dismissals and their current inability to work in various spheres of the private sector according to their qualification as lawyers. The applicants contend that the measures under the Act constituted an unjustified interference with the expression of their views – confirmed by the fact of their former employment with the KGB. The applicants state that the Act serves only as an arbitrary measure of vengeance by the State vis-à-vis all former employers of the KGB, without taking account of their personal history or actual activities while working for that organisation.   5. Under Article 4 of the Convention the first applicant complains about various restrictions on his work activities during the period from 1991 to 1998. THE LAW 1.     Under Article 6 of the Convention, which guarantees the right to a “fair” hearing in determination of the “civil rights and obligations” of a person or “a criminal charge” against him, the applicants allege various irregularities in the impugned domestic proceedings. The Government submit that Article 6 did not apply to the proceedings under its “criminal” limb, but that the proceedings could be regarded as “civil”. In any event, in the Government’s view, the domestic proceedings satisfied the requirements of “fairness” within the meaning of Article 6 § 1 of the Convention. The Court notes that the proceedings in the present cases concerned the validity of the respective “conclusions” in regard to the applicants, attesting their status as former KGB officers. As a result of the proceedings the applicants were subjected to employment restrictions under Article 2 of the Act (see the ‘Relevant domestic law and practice’ section above). The Court recalls its decision on admissibility in the Sidabras and Džiautas v. Lithuania cases (nos. 55480/00 and 59330/00, 21.10.2003), whereby it was found that proceedings under the Act concerning employment restrictions of former KGB officers could not be regarded as involving “a criminal charge” within the meaning of Article 6 § 1 of the Convention. In the present cases the Court does not see any reason to depart from the above finding. It follows that Article 6 was not applicable to the impugned proceedings under its “criminal” limb. Nonetheless, the Court observes that the present cases involved the determination of the applicants’ “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention, given that in the aftermath of the proceedings they lost their employment, respectively, as a lawyer at a private company and barrister (see, by contrast, the above mentioned Sidabras and Džiautas v. Lithuania cases, where the applicants lost their jobs as public officials). Accordingly, Article 6 § 1 applies in the present cases under its “civil” head. The Court notes at the outset that the applicants cannot invoke the provisions of Article 6 §§ 2 and 3 of the Convention in regard to the impugned proceedings in view of their “civil”, not “criminal” nature (see above). It follows that the applicants’ complaints under the above provisions, notably those concerning the presumption of innocence and defence rights, are incompatible ratione materiae within the meaning of Article 35 § 3 of the Convention. The Court reiterates however that the requirement of “fairness” of proceedings within the meaning of Article 6 § 1 includes the right to adversarial proceedings, which means the opportunity for the parties to have knowledge of and to comment on all the evidence adduced or observations filed with a view to influencing the court’s decision. The principle of equality of arms - one of the elements of the broader concept of a “fair” trial - requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Walston v. Norway (no. 1), no. 37372/97, 3.6.2003). The second applicant submits that the principle of the equality of arms was breached in that he was given no access to and could not contest the material serving as the basis for the “conclusion” of the authorities. However, the second applicant has not denied that the “conclusion” only attested to the fact of his former KGB employment - a fact that the second applicant himself did not contest by way of the impugned proceedings. Indeed, he admitted before the domestic courts that he had been a former KGB officer. The second applicant’s action before the Lithuanian courts was limited to the claim that he had been entitled to exceptions from the employment restrictions under Article 3 of the Act. There is no evidence that the second applicant was denied the possibility to submit evidence in this respect, or that he had been placed at any substantial disadvantage vis-à-vis the other party in the proceedings. It is noted in addition that the domestic courts reached their decisions to dismiss the second applicant’s action also on the basis of evidence given by witnesses. The fact that the courts did not interpret the evidence in his favour does not disclose a violation of Article 6   § 1, given the absence of an indication that the way in which the courts handled the evidence was “unfair” within the meaning of the above provision.        To the extent that the second applicant complains that the proceedings were not public, the Court notes that the trial before the first instance court was indeed held in camera . However, the situation was remedied by way of a public hearing before the Supreme Administrative Court which had full competence to review all factual and legal aspects of the case while entertaining the second applicant’s appeal. There is further no allegation that the court decisions were not made available to the public. It follows that the second applicant’s complaint about the lack of public nature of the proceedings is unsubstantiated.     Overall, on the basis of the material in possession, the Court observes that in both sets of domestic proceedings at issue the applicants were afforded ample opportunities to state their cases and contest the evidence that they considered false. The court decisions do not appear arbitrary. It follows that the applicants’ complaints about “unfairness” of the proceedings under Article 6 § 1 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3, and they must be rejected under Article 35 § 4.   2.     Under Article 7 of the Convention, which prohibits punishment without law, the applicants complain that they were retroactively punished for their KGB history. The Court recalls that the proceedings concerning the applicants’ dismissal and the restrictions on their employment prospects under the Act did not concern “a criminal charge” against them within the meaning of Article 6 § 1 of the Convention (see above). It follows that the above proceedings did not concern “a criminal offence” for the purpose of Article   7. Hence, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and it should be rejected under Article 35 § 4 thereof. 3.     The applicants further complain that the application of the Act to them breached Article 8 of the Convention, alone and taken in conjunction with Article 14. Article 8 reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 states: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Government submit that Article 8 is not applicable in the present cases as that provision does not guarantee a right to retain employment or choose a profession. They further state that the application of the Act to the applicants in any event served the legitimate purpose of the protection of national security and was necessary in a democratic society. According to the Government, the Act constituted no more than a justified security cleansing measure intended to prevent former employees of a foreign secret service from working in various spheres of activity of importance to the national security of the State. The Act itself did not impose a collective responsibility on all former KGB officers without exception. The fact that the applicants were not entitled to benefit from any of the exceptions provided for in Article 3 of the Act showed that there existed well-founded suspicion that the applicants lacked loyalty to the Lithuanian State. Accordingly, there was no violation of Article 8 of the Convention, either taken alone or in conjunction with Article 14. The applicants contest the Government’s submissions. They state in particular that they were arbitrarily dismissed from their jobs and deprived of any possibility to find proper employment in the private sector in line with their academic qualifications as lawyers. Having regard to the parties’ observations, the Court considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.   4.     The applicants further complain that the application of the Act to them constituted an unjustified interference with the expression of their views – confirmed by the fact of their former employment with the KGB. In this respect they allege a breach Article 10 of the Convention, alone and in conjunction with Article 14. Article 10 reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The Government submit that Article 10 is not applicable in the present case. They further state that the application of the Act to the applicants in any event served the legitimate purpose of the protection of the national security and was necessary in a democratic society. The applicants were not punished for any of their views, whether views that they hold at present or views that they may have held in the past. The Act did not impose a collective responsibility on all former KGB officers without exception. The fact that the applicants were not entitled to benefit from any of the exceptions provided for in Article 3 of the Act showed that there was well-founded suspicion that the applicants lacked loyalty to the Lithuanian State. Accordingly, there was no violation of Article 10 of the Convention, either taken alone or in conjunction with Article 14. The applicants contest the Government’s submissions. They state in particular that they lost their jobs in the private sector and were deprived of any possibility to find proper employment on account of their former views reflected in their previous employment with the KGB. The applicants consider that the loss of their employment, respectively as a barrister and lawyer at a private company, could not be made conditional on their former KGB employment, as jobs in the private sector do not require “loyalty” to the State to the same extent as public-sector jobs. In any event, their own loyalty to the Lithuanian State was never questioned during the domestic proceedings, nor did they have the opportunity to submit any arguments to the domestic courts proving that loyalty. The Act arbitrarily and collectively punished all former KGB officers regardless of their personal history. According to the applicants, there was in consequence a violation of Article 10 of the Convention, taken alone or in conjunction with Article 14. Having regard to the parties’ observations, the Court considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 5.     Under Article 4 of the Convention, which prohibits slavery and compulsory labour, the first applicant complains that during the period from 1991 to 1998 he has been subjected to various employment restrictions. It does not appear however that the first applicant has exhausted domestic remedies in regard to this part of the application, contrary to the requirement of Article 35 § 1 of the Convention. In any event, the first applicant has presented no evidence showing that he may have been forced to perform any work prohibited by Article 4. It follows that this part of the application should be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 8 and 10 of the Convention, taken separately and in conjunction with Article 14; Declares the remainder of the applications inadmissible.   Vincent Berger   Georg R ess   Registrar   President