CEDH · CASELAW;CLIN;ENG — 23 juin 2015

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Lithuania - 50421/08 and 56213/08 Judgment 23.6.2015 [Section II] Article 14 Discrimination Refusal to reinstate former KGB employee based on legislation previously found to be contrary to the Convention: violation Facts – The three applicants were former employees of the Lithuanian branch of the KGB. Following a law introduced in 1998 (the so-called “KGB Act”), providing that former KGB employees were banned from taking up certain private sector jobs for a period of ten years, the applicants were dismissed from their posts and banned from applying for public-sector and various private-sector posts. They subsequently brought proceedings before the domestic courts, which were unsuccessful. In its judgments in Sidabras and Džiautas v.   Lithuania and Rainys and Gasparavičius v.   Lithuania the Court held that the ban violated Article   14 taken in conjunction with Article   8 of the Convention. Following those judgments, the applicants initiated new domestic proceedings claiming that they were still unable to find employment in the private sector because the KGB Act had not been amended. However, their complaints were unsuccessful. Law – Article 14 in conjunction with Article   8 (a)     Admissibility – The respondent Government had argued that the applicants’ complaint should be declared inadmissible as being mainly related to issues previously examined by the Court. The Court noted, however, that following the Court’s above-mentioned judgments, the first and second applicants (Mr   Sidabras and Mr   Džiautas) had lodged applications with the Lithuanian administrative courts claiming damages for arbitrary discrimination. In the wake of those administrative court proceedings, the Supreme Administrative Court had unequivocally acknowledged that the Convention and the Court’s case-law could be directly relied upon when defending human rights at the domestic level, and that in the hierarchy of legal norms the Convention took priority over national laws. The third applicant (Mr   Rainys) had also initiated new domestic proceedings, seeking reinstatement in his previous job. However, although the third applicant’s dismissal had been found to be contrary to the Convention, he had been unable to obtain reinstatement because the KGB Act remained in force. In the light of the continuous existence of that Act, the elements referred to above and the contradictory conclusions of the highest courts of administrative and general jurisdiction constituted in the Court’s view “relevant new information” within the meaning of Article 35   (2)   (b) of the Convention concerning the Convention rights of former KGB employees capable of giving rise to a fresh violation of Article   14 taken in conjunction with Article   8. Furthermore, although the Council of Europe’s Committee of Ministers had begun its monitoring of the execution of the Court’s judgments in the applicants’ cases, a final resolution had not yet been adopted. Accordingly, the complaints were compatible ratione materiae with the Convention and its Protocols. (b)     Merits (i)     First and second applicants – Pursuant to the principles laid down in Rainys and Gasparavičius , the Court had to determine whether the first two applicants had sufficiently demonstrated that the KGB Act still prevented them from obtaining private-sector employment, so as to reverse the burden of proof and to require the Government to disprove the existence of a discriminatory measure in violation of Article   14 taken in conjunction with Article   8. In the first applicant’s case, the domestic court had concluded that there was no proof that, after the Court’s judgment of 2004, he had been prevented from obtaining a private sector job because of the restrictions contained in the KGB Act. Furthermore, the first applicant had not provided any particular information as to who had refused to employ him as a result of those restrictions, or when. Having regard to the documents in the Court’s possession, there was nothing to contradict the domestic court’s conclusion that the first applicant had been unemployed either for justified reasons or for having refused a number of job offers. As to the second applicant, he had acknowledged that he had been a trainee lawyer since 2006 and had never attempted to obtain other private sector employment. He had thus failed to substantiate his claim that he had continued to be discriminated against on account of his status. In the light of the foregoing, the first two applicants had not plausibly demonstrated that they had been discriminated against after the Court’s judgments in their cases. Conclusion : no violation in respect of the first and second applicants (four votes to three). (ii)     The third applicant – The domestic courts had acknowledged that the third applicant’s dismissal had been contrary to the Convention. However, at the same time they had failed to order his reinstatement, without providing a proper explanation. Moreover, they had stated explicitly that “while the KGB Act ... is still in force, the question of reinstating the third applicant … may not be resolved favourably”. In the light of this statement, and of the lack of reasoning by the domestic courts, the State had not convincingly demonstrated that the domestic courts’ reference to the KGB Act had not been the decisive factor forming the legal basis on which the third applicant’s claim for reinstatement had been rejected. Conclusion : violation in respect of the third applicant (unanimously). Article 41: EUR 6,000 to the third applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See Sidabras and Džiautas v. Lithuania , 55480/00 and 59330/00, 27   July 2004, Information Note   67 ; and Rainys and Gasparavičius v.   Lithuania , 70665/01 and 74345/01, 7   April 2005; see also Verein gegen Tierfabriken Schweiz (VgT) v.   Switzerland (no.   2) [GC], 32772/02, 30   June 2009, Information Note   120 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes