CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 octobre 2025

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   SECOND SECTION CASE OF MISIŪNAS v. LITHUANIA (Application no. 38687/22)   JUDGMENT Art 6 § 1 (civil) • Access to court • Applicant’s inability to effectively contest the President of the Republic’s decision, not formalised by a decree, not to reappoint him to the post of district court judge • Art   6 applicable • Genuine and serious dispute over “right” in domestic law to a fair procedure in the examination of an application for the return to a judicial post • Second condition of the Eskelinen test not met • Exclusion of the applicant, who met statutory eligibility requirements, from a (re)appointment procedure, without judicial review, not in the interest of a State governed by the rule of law • Applicant’s situation to be distinguished from cases involving initial appointments to the judiciary • No exceptional or compelling reasons justifying absence of judicial review • Domestic courts’ failure to provide an effective legal remedy capable of addressing the substance of the applicant’s complaint   Prepared by the Registry. Does not bind the Court.   STRASBOURG 7 October 2025   FINAL   07/01/2026   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Misiūnas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Saadet Yüksel,   Jovan Ilievski,   Peeter Roosma,   Oddný Mjöll Arnardóttir,   Stéphane Pisani,   Juha Lavapuro , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   38687/22) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Eimutis Misiūnas (“the applicant”), on 2   August 2022; the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning the applicant’s right to access to court and his right to an effective remedy; the withdrawal from the case of Mr Gediminas Sagatys, the judge elected in respect of Lithuania (Rule   28 §   3 of the Rules of Court), and the decision of the President of the Section to appoint Mr Peeter Roosma to sit as an a d   hoc judge in the case (Article 26 § 4 of the Convention and Rule 29 § 1); the parties’ observations; Having deliberated in private on 9 September 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the applicant’s complaint that he was unable to effectively contest the President of the Republic’s decision not to reappoint him to the post of district court judge, a decision which was not formalised by a decree ( neįformintas dekretu ). THE FACTS 2.     The applicant was born in 1973 and lives in Vilnius. 3.     The Government were represented by their Agent, Ms Karolina Bubnytė-Širmenė. 4.     The facts of the case may be summarised as follows. Background 5 .     By a decree of 18   November 2015 the President of the Republic appointed the applicant to the post of judge of the Vilnius City District Court. 6 .     By a decree of 8   December 2016 the President of the Republic, referring to Articles   84 § 1 (11), 112 §   4 and 115 § 1 (4) of the Constitution (see paragraph 57 below) and Article   90 §§   1   (4) of the Law on Courts (see paragraph 59 below), dismissed the applicant from the post of judge of the Vilnius City District Court in connection with the applicant’s appointment as a member of the Government (see paragraph 7 below). 7 .     As noted by the applicant, on 13   December 2016 he was sworn in by the Seimas as Minister of the Interior. Immediately following his term in that post, from 16   September 2020 to 11   December 2020, he served as Vice ‑ Minister of the Ministry of Defence. The applicant’s first request to be APPOINTED to the post of judge The applicant’s requests to the National Court Administration and the Chancellery of the President of the Republic 8 .     On 11   December 2020 the applicant asked the National Court Administration ( Nacionalinė teismų administracija ) that he be appointed to the post of judge of the Vilnius City District Court. The applicant referred to Article   61 §§   2   and 3 of the Law on Courts (see paragraph   59 below) and pointed to his service as Minister and Vice-Minister (see paragraph 7 above). 9.     On 16 December 2020 the National Court Administration forwarded the applicant’s request to the Chancellery of the President of the Republic (hereinafter also “the Chancellery”). 10.     In public statements made in January 2021, State officials, including the President of the Republic, Gitanas Nausėda, expressed the view that the applicant would not be reappointed. The reasons included (i)   the applicant’s departure from the post of judge for a political post, (ii) concerns on the part of the President of the Republic that the applicant would lack impartiality and would be unable to responsibly perform the duties of a judge, and (iii) a “cooling-off period” was necessary after a political post, although no specific duration for such a period was indicated. No formal decision was taken on the applicant’s request to be reappointed as a judge (see paragraphs   14, 20 and 22 below). 11 .     On 1   February 2021 the applicant wrote to the Chancellery of the President of the Republic, requesting a reply, with reasons, to his request of 11   December 2020. Replies from the Chancellery of the President of the Republic and the National Court Administration 12 .     On 23 February 2021 the Chancellery of the President of the Republic, responding to the applicant’s request of 1 February 2021, wrote that, under Article 84 §   1   (11) and Article 112 of the Constitution (see paragraph   57 below) and under Articles 56 and 61 of the Law on Courts (see paragraph   59 below), it was the President of the Republic who took decisions on judges’ appointments. The Chancellery noted that the Law on Courts provided for a possibility that judges who had discontinued their career as judge could apply, for a certain period, to be a judge without the necessity of passing an exam and without the need to take part in the pre-selection procedure for judges. However, the general rules of appointment still applied to such individuals   –   it was for the President of the Republic to take a decision to ask the Judicial Council ( Teisėjų taryba ) for advice on the appointment of a person as a judge and afterwards it was also for the President of the Republic to take a decision regarding the appointment. Under the Constitution and under the Law on Courts, the President of the Republic could, but was not obliged to, appoint a former judge to the post of judge. The President of the Republic, using his discretion established in the legislation, assessed all relevant circumstances and was guided by public interest. The Chancellery lastly noted that “regarding the question asked, the President’s decree was not adopted” ( prašomu klausimu Respublikos Prezidento dekretas nebuvo priimtas ). 13 .     On an unknown date in February 2021, in reply to the applicant’s email of 19   February 2021, the National Court Administration confirmed that between 11 December 2020 and 29 January 2021 no selection procedure for the post of judge at the Vilnius City District Court had taken place. Likewise, the National Court Administration had not performed a selection procedure related to that post. In addition, it had not submitted a list of the most suitable candidates to the President of the Republic. Administrative court proceedings The applicant’s claim 14 .     On 1   March 2021 the applicant lodged a claim with the Vilnius Regional Administrative Court, requesting that it: (1) find that the Chancellery of the President of the Republic, by not providing a written reply to his request, had not followed the principle of responsible governance (the principle of good public administration); (2) find that the President of the Republic, in deciding not to appoint the applicant to the post of judge, had disregarded the Law on Courts and had acted in breach of the principles of fairness, objectivity, transparency and professionalism and to find that the President of the Republic, in implementing the powers granted to him when appointing judges, had not complied with the requirements arising from Article   5 §   2 of the Constitution, the constitutional principles of responsible governance and the rule of law; (3) find that the President of the Republic, in basing his decision on the opinions he expressed in his statements that the applicant had “left the post of judge for a political post”, that he would “lack impartiality and be unable to responsibly perform the duties of a judge of the [Vilnius City District Court]” and that the applicant needed a “political cooling-off period”, had disregarded the principles of responsible governance and rule of law; (4) find that the legitimate expectations of the applicant, as a former judge, had been breached and to oblige the Chancellery to pay him the salary which he would have received during the period when he had not been appointed judge [which the applicant stated amounted to 3,464 euros (EUR) before taxes]; (5) declare that the statements made by the President of the Republic that the applicant had “left the post of judge for a political post”, that he would “lack impartiality and be unable to responsibly perform the duties of a judge of the Vilnius City District Court” and that the applicant needed a “political cooling-off period” were null and void, not based on evidence and in breach of the applicant’s honour and dignity, undermining the applicant’s reputation as a professional lawyer and a judge (on the basis of which the applicant asked the administrative court to award EUR   10,000 in respect of non-pecuniary damages); and (6) oblige the National Court Administration and the Chancellery to carry out all necessary procedures as regards [the applicant’s] appointment as a former judge. Ruling of the Vilnius Regional Administrative Court 15 .     In a ruling of 10 March 2021 the Vilnius Regional Administrative Court pointed out that, under Article 84 §   1   (11) and Article 112 §   4 of the Constitution and Articles   56 and 61 of the Law on Courts, it was the President of the Republic who took a decision on the appointment of a person to the post of judge of the district court. Therefore, neither the acts of the Chancellery nor the acts of the National Court Administration had any legal consequences for the applicant and their correspondences (see paragraphs   12 and 13 above) thus fell outside the scope of the case. 16 .     The Vilnius Regional Administrative Court then referred to the ruling of the Constitutional Court of 13   May 2010 (see paragraph 30 below) and held that the formation of the corps of judges as State officials exercising State power was an activity of the President that was exclusively related, not to public administration, but to the State power ( valstybės valdžia ) exercised by him; therefore, the administrative courts could not examine such activity of the President of the Republic nor could they oblige the President of the Republic to issue a legal act (decree) related to the above-mentioned exercise of State power. 17 .     The Vilnius Regional Administrative Court also observed that the powers of the President of the Republic, entrenched in the Constitution as regards the formation of the judiciary, were a significant element of the constitutional status of the Head of State. The appointment or the refusal to appoint a former judge to the post of judge fell within the sphere of implementation of State power by the President of the Republic. 18 .     Noting that the activities of the President of the Republic, when exercising State power, could not constitute the subject of an administrative dispute, the Vilnius Regional Administrative Court refused to accept for examination the applicant’s claims in so far as requests nos. 1-4 and 6 of his claim were concerned (see paragraph   14 above), as they were not amenable to administrative court proceedings. 19.     Lastly, regarding the applicant’s request no.   5 (his claim for non ‑ pecuniary damage), the Vilnius Regional Administrative Court held that it fell within the competence of the courts of general jurisdiction. The Government noted that applicant had not appealed against that decision to the Supreme Administrative Court. Civil court proceedings The Vilnius Regional Court The applicant’s complaint 20 .     On 22   March 2021 the applicant brought a lawsuit in the Vilnius Regional Court. The applicant stated that on 25   January 2021 the Head of the Legal Group of the President’s Office ( Teisės grupės vadovė ) J.Š. had called the applicant on the phone and announced that he would not be appointed to the post of judge since, as quoted by the applicant, he had “been in politics and therefore did not comply with the principle of political neutrality and needed a ‘political cooling-off period’” ( buvau politikoje ir neatitinku politinio neutralumo principo ir dabar reikia “politinio atšalimo” laikotarpio ). He was also told that no written answer regarding such decision would be sent to him. 21 .     The applicant further noted that J.Š. had confirmed that decision ­ – that the applicant would not be appointed judge – on the news of the TV3 and LNK channels on 26   January 2021; that decision had also been confirmed by the President of the Republic, Gitanas Nausėda, during a press conference on 29   January 2021, wherein the President stated that the length of a political cooling-off period had to be “assessed in each individual case” ( politinio atšalimo terminas gali būti nustatomas kiekvieną kartą individualiai ). 22 .     The applicant lodged a claim, requesting that the court: (1) find that the President of the Republic, by subjectively deciding not to appoint the applicant to the post of judge of [the Vilnius City District Court], had disregarded the Law on Courts, thus violating the principles of fairness, objectivity, transparency and professionalism, as applicable to the selection of judges; (2) find that the President of the Republic, by taking a decision not to appoint the applicant to the post of judge and not formalising that decision by a decree, had not followed the constitutional principle of responsible governance and had violated the principle of the rule of law; (3) find that the President of the Republic, in basing his decision on his opinions expressed in groundless statements, had had no legal basis to take a decision not to appoint the applicant to the post of judge; (4) award compensation for pecuniary damage for the unpaid salary for the period when the applicant was not appointed to the post of judge; (5) find that the statements made by the President of the Republic that the applicant had “abandoned the post of judge for a political post” ( mečiau teisėjo darbą dėl politinio posto ), that the applicant “would lack impartiality and would be unable to responsibly perform the duties of a judge of the district court” ( nesugebėsiu būti nešališkas ir atsakingai vykdyti apylinkės teismo teisėjo pareigų ) and that the applicant needed a “political cooling-off period” were null and void, not based on evidence and humiliating to a person who had worked honestly and honorably, thereby undermining the applicant’s reputation as a professional lawyer and judge; and to additionally find that such statements by the President of the Republic had humiliated the applicant, a former politician, and had denied the applicant the opportunity to honestly serve the people of Lithuania. The applicant asserted that such statements had caused him moral suffering for which he sought EUR   10,000 in respect of non-pecuniary damage; (6) oblige the President of the Republic to appoint the applicant to the post of judge; and (7) apply to the Constitutional Court regarding the legislative omission ( legislatyvinė omisija ) that had prevented the applicant from exercising his rights under Article   30 §   1 of the Convention (right of access to a court – see paragraph   57 below). 23 .     Among the arguments in support of his claim, the applicant stated that the decision not to appoint him, as a former judge, to a post of judge could be considered to amount to a complete loss of the status of judge, somewhat similar to a situation of a judge who is dismissed from office for discrediting the office of judge through his own actions (Article   90 §   1   (5) of the Law on Courts – see paragraph   59 below). The Vilnius Regional Court’s decision 24 .     On 29   March 2021 the Vilnius Regional Court refused to accept for examination the applicant’s claim. Firstly, the applicant’s request that it find that the President of the Republic had unreasonably decided not to appoint him to the post of judge and to oblige the President to do so was not amenable to review in any court, either under the rules of administrative law proceedings or under civil proceedings. The same had already been explained to the applicant by the Vilnius Regional Administrative Court, which had held that the formation of the corps of judges, as State officials exercising State power, was the activity of the President that was exclusively related, not to public administration, but to the State power ( valstybės valdžia ) exercised by him, and that, therefore, the administrative courts could not examine such activity of the President, nor could they oblige the President to issue a legal act (decree) related to the above-mentioned exercise of State power (see paragraphs   16-18 above). 25 .     Referring to the Constitutional Court’s ruling of 13   May 2010 (see paragraph   30 below), the Vilnius Regional Court further held that the domestic courts could not make relevant decisions on behalf of the Seimas , the President of the Republic or the Government or to oblige those authorities to enact acts related to the exercise of State power. Contrary to what had been suggested by the applicant, Article   90 §   9 of the Law on Courts (see paragraph   59 below) could not be applied by analogy in the applicant’s situation, as he was not a judge at that time. 26 .     The Vilnius Regional Court lastly stated that the applicant’s claim for compensation for pecuniary damage caused by his non-appointment to the post of judge and his claim for protection of honour and dignity could be heard in the district court of general jurisdiction (lower jurisdiction). The Court of Appeal 27 .     The applicant lodged a separate appeal ( atskirasis skundas ), however on 1   July 2021 the Court of Appeal left the Vilnius Regional Court’s decision unchanged. The Supreme Court 28 .     On 9 September 2021 the applicant lodged an appeal on points of law. 29 .     On 20 April 2022 the Supreme Court firstly examined a request, submitted by the applicant, that a referral be made to the Constitutional Court regarding a legislative omission, which, in the applicant’s view, provided the applicant with no possibility of appealing to a court against a decision by the President not to appoint the applicant to the post of judge, which had not been formalised by a decree. The Supreme Court noted that the basis on which to make a referral to the Constitutional Court was a situation where a doubt might arise in the context of a court hearing a case that a concrete legal act, which should have been applied in that concrete case, contradicted the Constitution; a court hearing a case would itself decide whether there was a basis for a referral. That did not deny the parties the right to ask the court hearing a case to suspend the proceedings and make a referral to the Constitutional Court; yet such a request by the parties did not bind the court. 30 .     The Supreme Court then pointed to the Constitutional Court’s ruling of 13   May 2010 regarding the specific details of the execution of State power, wherein the Constitutional Court had held as follows: “7. ... the peculiarities of the constitutional status of the Seimas , the President of the Republic, the Government and the judiciary related to the implementation and separation of State powers imply, inter alia , that these institutions may not go beyond each other’s constitutional powers, thus, also the courts to which the persons concerned apply with petitions requesting the investigation of the acts adopted by the Seimas , the President of the Republic or the Government or the otherwise expressed activities of these institutions may not go beyond the constitutional powers of the Seimas , the President of the Republic or the Government, that is, [the courts may not] adopt corresponding decisions for these institutions of power or oblige those institutions of power to pass acts related to the execution of State power.” 31 .     The Supreme Court underlined, that for the reasons above it followed that the activity of the President of the Republic, when appointing (or not) a person to the post of judge, fell within the sphere of execution of State power. A court therefore could not oblige the President of the Republic to appoint a person to the post of judge and the “non-appointment to a post of judge [could] not be the subject of examination in court” ( asmens nepaskyrimas teisėju negali būti teisminio nagrinėjimo dalykas ). There was therefore no basis for a conclusion that the legal regulation under which a court could not oblige the President of the Republic to appoint a former judge to the post of judge might contradict the Constitution. Thus, there was no need for a referral to the Constitutional Court. 32 .     The Supreme Court next held that the applicant’s claims regarding the President’s decision not to appoint the applicant as a judge and not to issue a decree had not created legal consequences for the applicant’s rights and obligations and, therefore, those claims could not be considered independent and could therefore not be examined in court. The lower courts had correctly refused to accept those claims for examination. The Supreme Court also agreed with the lower courts’ finding that the applicant’s request to oblige the President to appoint him to the post of judge was not amenable to review in any court ( nepriskirtinas nagrinėti jokiam teismui ). 33 .     The Supreme Court then noted that even though the act of forming the judiciary ( teisėjų korpuso formavimas ) belonged in the sphere of execution of the State power of the President of the Republic, this did not deny a person the right, if he or she considered that the State power had been implemented improperly, to demand compensation for the damage sustained. 34 .     The Supreme Court noted that in his lawsuit the applicant had asked, among other things, to be awarded damages in the amount of the salary which he had not received for the period when he had not been appointed to the post of judge; he had also asked the court to defend his honour (to hold the President’s statements as unfounded and as breaching the applicant’s honour and dignity) and to be awarded compensation for non-pecuniary damage. The Supreme Court then held that the applicant had not specified a concrete sum in unpaid salary in respect of his claim for pecuniary damage. There was, therefore, no possibility of establishing the amount of pecuniary damage he had sustained. The Supreme Court therefore held that the Vilnius Regional Court, as the court of first instance, should not have refused to accept for examination the applicant’s claim for pecuniary damage; rather, it should have imposed a time-limit for the applicant to rectify the shortcomings of his lawsuit, that is, to specify the sum claimed as pecuniary damage. 35 .     The Supreme Court lastly held that the other arguments in the applicant’s appeal on points of law related to the procedures for appointments to the post of judge and the President’s competence when appointing judges were unrelated to the resolution of the question whether the claim should be accepted for examination, but that they were instead related to the merits of the lawsuit; thus the Supreme Court refrained from addressing those arguments. The Vilnius Regional Court 36 .     On 21   April 2022 the Vilnius Regional Court, referring to the Supreme Court’s ruling of 20   April 2022, set out a ten-day time-limit for the elimination of the deficiencies of the claim: firstly, the applicant was to indicate whether the claim for pecuniary damage was linked to the defence of honour and dignity and, if so, to pay the court fee; secondly, the applicant was to indicate whether the claim for pecuniary damage was based on an employment relationship and, if so, to explain (in relation to the total sum claimed) why the case should fall within the jurisdiction of a regional court rather than a district court as the court of first instance. 37 .     By a ruling of 11   May 2022 the Vilnius Regional Court found that the applicant had not eliminated the deficiencies of the claim within the time-limit set by the Vilnius Regional Court (see paragraph above) and thus held that it would be considered that the applicant’s claim had not been submitted. The applicant’s second request to be reinstated to THE post of judge 38.     On 16   September 2022 the applicant submitted a new request to the President of the Republic (and the Chancellery), referring to his prior work as a judge and to his work as a Minister and Vice-Minister – a post specified in Article   61 §§   2 and 3 of the Law on Courts (see paragraph 59 below). The applicant asked to be appointed judge of the Vilnius City District Court. 39 .     On 5 October 2022 the applicant asked the President of the Republic (and the Chancellery) to be allowed to have his health checked and to be issued security clearance. Upon that request, he received the relevant documents and clearances. 40 .     As stated by the Government in their observations to the Court, on 18   October 2022 the President of the Republic, taking into account the fact that a reasonable period of time had passed since the applicant had held a political position, which in his view meant that possible political connections would be severed, met with the applicant. During that meeting with the President the applicant made no mention of any further intention to take part in politics. By a decree of 19   October 2022 the President of the Republic asked the Judicial Council for advice on the applicant’s appointment to the Vilnius City District Court. 41 .     As noted by the Government, the question of the applicant’s appointment was discussed during the Judicial Council’s meeting of 11   November 2022. In reply to a question by the chair of the Judicial Council, Ms S.R., whether the applicant had indeed decided to take up the post of judge, the applicant replied as follows: “The President of the Republic also asked the question whether, should Mr Skvernelis win the next election and again offer me the post of Minister, I would [accept it]. If they offered me the position of Minister I would probably go, as it is really a great honour to be the Minister of Lithuania and to represent Lithuania [and] in that event I may not choose other positions – I mean the position of Vice-Minister, or something similar. For the moment, I have decided to work as a judge and what challenges may arise, especially as I will consider them from my human [perspective], fate will decide; it is difficult to answer, but at the moment I am truly determined to be a judge and I see the opportunity to work as a judge and to be a member of your community.” “ Prezidentas irgi klausė klausimo - o jeigu Skvernelis laimės kitus rinkimus ir vėl pasiūlys būti ministru ar eisiu? Jeigu pasiūlytų ministru, tikriausiai eičiau, tai tikrai didelė garbė būti Lietuvos ministru ir atstovauti Lietuvai, šiuo atveju kitų pareigų gal ir nesirinkčiau. Turiu omenyje ten viceministro pareigas ar taip toliau. Šiam momentui esu apsisprendęs dirbti teisėjo pareigose, o kokie iššūkiai bus, ypač juos vertinsiu savo žmogiškąja prasme kaip likimas lems, sunku atsakyti, bet šiuo metu esu tikrai apsisprendęs būti teisėju ir matau galimybę dirbti teisėju ir būti jūsų bendruomenės nariu. ” Afterwards, a member of the Judicial Council, Mr N.M., asked the applicant the following question: “When you were asked if you wished to come back to the post of Minister, you expressed a doubt that it was really a post for which you really need to quit and come back; does this mean that you consider the post of judge less prestigious, less honourable [or] less significant for the State of Lithuania, which you would quit because of an [opportunity to go] back to the Ministers?”   “ Kai jūsų klausė ar sugrįžtumėte į ministro postą, tai na tokią išreiškėt abejonę, kad toks tikrai postas dėl kurio tikrai reikia mesti ir sugrįžti, tai jūs teisėjo pareigas laikote mažiau prestižines, mažiau garbingas, mažiau reikšmingas Lietuvos valstybei, kad mestumėt jas dėl kelio atgal į ministrus? ” The applicant replied as follows: “You are speaking in the President’s words. In principle, serving as a Minister does not mean giving up the post of judge. As you are well aware, the Law on Courts provides for the possibility of being appointed to the post of judge after two years and this is a special right; that is why, when I was appointed as a member of the Government, in view of the fact that under the Law of Courts the right of possibly being reappointed to a post of judge, even without a competition, after previously being appointed to such post, I was convinced that I could avail myself of that right. Well, I am now availing myself of that right, that is, two years have not yet passed and I am not participating in a competition, but I am applying in accordance with the provision of the Law on Courts. For this reason, it is very disappointing to hear that [member of Judicial Council] Mr. N. calls the temporary exchange of the post of judge for, let’s say, the position of Minister as leaving the post of judge.” “ Kalbate Prezidento žodžiais. Iš principo eiti ministro pareigas tai ne mesti teisėjo pareigas. Jeigu puikiai žinot ten teisėjų įstatyme yra numatyta galimybė grįžti į teisėjo pareigas praėjus dviem metam ir tai yra specialioji teisė, dėl ko buvau įsitikinęs, kad paskiriant mane Vyriausybės nariu, t.y. numatyta šiuo atveju Teismų įstatyme, kad tokia teisė paskyrus į tokias pareigas yra galimybė grįžti ir be konkurso į teisėjo pareigas, tai aš ta teise maniau, kad galiu ir pasinaudoti. Na ta teise šiuo metu ir naudojuosi, t.y. 2 metai nepraėjo ir aš ne dalyvauju konkurse, o pretenduoju pagal teisėjų įstatymo šią nuostatą. Dėl to labai apmaudu girdėti, jeigu gerbiamas N. teisėjo darbo laikinai iškeitimą į sakykime ministro pareigas vadina metimo teisėjo pareigomis .” According to the Government, at the same meeting a member of the Judicial Council, Mr E.R., asked the applicant about the articles which had appeared in the media two days prior to the meeting, those articles having mentioned allegedly illegal actions of the applicant while being a Minister and allegedly concealing the crimes that may have been committed (at the time of the adoption of the decree of the President of the Republic on application to the Judicial Council, there were no such articles yet, the circumstances mentioned in them were not known to the President of the Republic). The applicant, among other things, replied as follows: “If I had compromised with my conscience, I would probably have been in the Seimas now; only because I was as I am I got the thirtieth place on the list, and it happened as it happened“ „ Jei būčiau daręs kompromisus su savo sąžine, tikriausiai dabar būčiau Seime, nes dėl to, kad buvau toks, gavau trisdešimtą vietą sąraše ir taip atsitiko, kaip atsitiko ”. 42 .     As noted by the Government in their observations, on 11   November 2022 the Judicial Council (fifteen votes for, and one vote against) decided to advise the President of the Republic to appoint the applicant to the post of judge of the Vilnius City District Court. The Government also stated that the President of the Republic had decided not to appoint the applicant to the post of judge of the Vilnius City District Court. The applicant’s request for follow-up to the President of the Republic (and the Chancellery of the President of the Republic) 43 .     On 17   March 2023 the applicant asked the President of the Republic (and the Chancellery) to “state the reasons” that a decision to appoint him as a judge of the Vilnius City District Court had not been taken. The applicant noted that in November 2022 the State Security Department’s report that he had a right to work with classified information had been obtained and that in   November 2022 the Judicial Council had consented to his being appointed judge of the Vilnius City District Court (see paragraph   42 above). 44 .     On 12   April 2023 the Chancellery responded, noting that, under Article   84 §   1 (11) and Article 112 (4) of the Constitution, the President of the Republic had the power to appoint district court judges when executing State power ( įgyvendindamas valstybės valdžią ). Under Article   112   (5) of the Constitution, a special institution (the Judicial Council) was to advise the President regarding the appointment of judges. That notwithstanding, if the President asked the Judicial Council for advice regarding the appointment of a judge and that institution advised the President that that specific person could be appointed, such advice did not bind the President; that meant that the President (among others, should certain circumstances relevant for the appointment come to light) could decide not to appoint such person as a judge. 45 .     The Chancellery observed that, although under Article   61 of the Law on Courts a former judge could be reappointed as a judge (see paragraph   59 below), neither the Law on Courts nor other legal acts established the President’s obligation to do so irrespective of any circumstances ( neatsižvelgiant į jokias aplinkybes ). The Chancellery then added that during the Judicial Council’s meeting of 11   November 2022 its members had “raised various questions and pointed to the applicant’s activities while he was a Minister and about his future plans to take part in politics”, which had not been known before the President’s referral to the Judicial Council regarding the applicant’s appointment as a district court judge and which were “important to the President of the Republic in taking a decision regarding [the   applicant] after the Judicial Council’s meeting”. The Vilnius Regional Court The applicant’s claim 46 .     The applicant initiated a new set of civil proceedings against the President of the Republic and the Chancellery. As summarised by the Vilnius Regional Court (see paragraph below), the applicant requested that court to: (1) find that, having decided not to appoint the applicant as a district court judge and demonstrating his particular bias against him, the President of the Republic had ignored Article   29 §   1 of the Constitution and had also breached the principles of honesty, objectivity, transparency and professionalism applicable to the process of the selection of judges; (2) find that the President of Republic had based his decision on unfounded arguments, which could not be considered circumstances that could have influenced a decision not to appoint the applicant as judge and not follow the Judicial Council recommendation, and had had no legal ground on which to take a decision not to appoint the applicant to the post of judge; (3) find that the President of the Republic, by taking a decision not to appoint the applicant to the post of judge and by not issuing a decree to formalise that decision, had not followed the constitutional principle of responsible governance and had also breached the principle of the rule of law; (4) order the respondent to pay him the average salary ( vidutinį darbo užmokestį ) calculated from the day the applicant was not appointed to the post of judge, that is, from December 2022, until the court’s decision was fully executed; and (5) refer to the Constitutional Court the question regarding the legislative omission, which, in the applicant’s assessment (a) did not allow him to implement his rights under Article   6 §   1 and Article 13 of the Convention and Article   30 §   1 of the Constitution and (b) prevented the applicant from being given the equivalent legal possibility of defending his good name and reputation as a former judge, this being in breach of Article 29 § 1 of the Constitution and Article 6 § 1 and Article 13 of the Convention. The Vilnius Regional Court 47 .     On 25   May 2023 the Vilnius Regional Court refused to accept the claim for examination. The Regional Court stated that the applicant’s requests nos. 1-3 (see paragraph   46 above) were not amenable to examination in court in civil proceedings. The court referred to the Supreme Court’s ruling of 20   April 2022 on this point, in which that court had held, while referring to the Constitutional Court’s rulings, that the appointment of judges fell within the remit of the powers of the President of the Republic, beyond which the courts could not go. The Vilnius Regional Court stated that formation of the judiciary ( teisėjų korpuso formavima s) was the responsibility of the President of the Republic and was therefore related to the execution of State power. A court had no jurisdiction to take decisions in the place of the President of the Republic or to oblige the President to pass a decree, to implement State power or, among other things, to appoint judges. It also followed from this that a court, without being able to take such decisions, also did not have jurisdiction to examine them. 48 .     As to the applicant’s request no.   4 (see paragraph   46 above), the Vilnius Regional Court considered that the applicant had not specified a concrete sum, although the court noted that the applicant’s claim had mentioned that his monthly salary was EUR 3,463.50 (before taxes), as based on a document previously issued by the Vilnius City District Court. The Vilnius Regional Court added that the regional courts only heard cases regarding claims exceeding EUR   100,000, except for labour litigation cases, and held that, therefore, such claim for pecuniary damage should be lodged with a district court (lower jurisdiction). 49 .     The Vilnius Regional Court found it necessary to emphasise that, when examining the question of whether the applicant’s request no.   4 (payment of salary arrears) was admissible in court ( sprendžiant šio ieškinio reikalavimo priimtinumą ), it had to bear in mind that the claim for the awarding of the alleged amount of his unpaid salary as pecuniary damage was based exclusively on the factual circumstances related to content of the applicant’s requests nos.   1-3. Therefore, having refused to accept requests   nos. 1-3 as non-amenable to judicial examination ( kaip nenagrinėtinus teisme ), a situation arose where the factual basis of the claim compensation for pecuniary damage could not be examined in court on account of its nature. It followed that such a claim could not be examined since it did not have an independent factual basis. Consequently, it was also necessary to refuse to examine request no. 4 as it was not amenable to examination in court. 50 .     The Regional Court also held that the applicant’s arguments that, because of his inability to appeal against the President’s decision, which had not been formalised by a decree, not to appoint him to the post of judge, a legal lacuna (legislative omission) existed which would constitute grounds to make a referral to the Constitutional Court, were devoid of legal basis. This had already been explained by the Supreme Court in its ruling of 20   April 2022 (see paragraphs 30 and 31 above). Accordingly, there was no basis to make a referral to the Constitutional Court. The Court of Appeal 51 .     The applicant lodged a separate complaint with the Court of Appeal. 52 .     On 4   July 2023 the Court of Appeal upheld the Vilnius Regional Court’s ruling inasmuch as it related to the applicant’s requests nos.   1-3 (see paragraph   47 above). The Court of Appeal noted that, as already established by the Supreme Court, the applicant’s claims that the President of the Republic had not adopted a decree were not amenable to court proceedings. However, if a person considered that he or she had sustained damage on account of the fact that State power had not been properly executed, he or she could claim damages in the form of an award in the amount of the unpaid salary for the time he or she had not been appointed as judge. The Vilnius Regional Court had properly established that the applicant had not enumerated the sum of his claim, that is, a concrete sum of unpaid salary as pecuniary damage; therefore this defect had to be rectified. The Court of Appeal varied the Vilnius Regional Court’s decision of 25   May 2023 in so far it was decided to refuse to accept the applicant’s claim for compensation for damage ( dėl žalos