SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 55480/00 and 59330/00
by SIDABRAS and DŽIAUTAS
against Lithuania
The European Court of Human Rights (Second Section), sitting on
1 July 2003 as a Chamber composed of:
MrL. Loucaides, President,
MrJ.-P. Costa, judge designated to sit in respect of Lithuania,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrsA. Mularoni, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above applications lodged, respectively,
on 29 November 1999 and 5 July 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the parties’ oral submissions at the hearing
on 1 July 2003,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Juozas Sidabras, is a Lithuanian national, who was born in 1951 and lives in Šiauliai. He is represented before the Court by
Mr E. Morkūnas, a lawyer practising in Šiauliai. The second applicant,
Mr Kęstutis Džiautas, is a Lithuanian national, who was born in 1962 and lives in Vilnius. He is represented before the Court by Mr V. Barkauskas, a lawyer practising in Vilnius.
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
In 1974 the applicant graduated from the Lithuanian Physical Culture Institute, qualifying as a certified sports instructor.
From 1975 to 1986 the applicant was an employee of the Lithuanian branch of the Soviet Security Service (hereinafter referred to as the “KGB”). After Lithuania regained independence in 1990, the applicant found employment as a tax inspector at the Inland Revenue.
On 31 May 1999 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” whereby they found that the 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). The conclusion confirmed that the applicant had been an employee of the KGB. On 2 June 1999 the applicant was dismissed from the Inland Revenue on the basis of that conclusion.
The applicant brought an administrative action against the security intelligence authorities, claiming that he had only been engaged in the field of counter-intelligence and ideology while working at the KGB, and that he had not been involved in the violation of individual rights by that organisation. He pleaded therefore that his dismissal and the resultant inability to find employment on the ground of the authorities’ conclusion under the Act were unlawful.
On 9 September 1999 the Higher Administrative Court found that the conclusion of 31 May 1999 had been substantiated, that the applicant was subject to the restrictions of Article 2 of the Act and that the exceptions under Article 3 thereof did not apply.
On 19 October 1999 the Court of Appeal rejected the applicant’s appeal. It found that the applicant had been involved in the operational activities of the KGB, that he had not dealt with criminal investigations while working there and that he could not benefit from the provisions of Article 3 of the Act.
2. The second applicant
On an unspecified date in the 1980s the applicant graduated from Vilnius University as a certified lawyer.
From 11 February 1991 the applicant worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating in particular organised crime and corruption cases.
On 26 May 1999 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 from 1985 to 1991 the applicant had been an employee of the Lithuanian branch of the KGB, and that he was thereby subject to the restrictions under Article 2 of the Act. On 31 May 1999 the applicant was dismissed from the Office of the Prosecutor General on the basis of that conclusion.
The applicant brought an administrative action against the security intelligence authorities and the Office of the Prosecutor General, claiming that from 1985 to 1990 he had only studied at a special KGB school in Moscow, that in 1990-1991 he had worked at the KGB as an informer of the Lithuanian security intelligence authorities and that the exceptions under Article 3 of the Act therefore applied. He pleaded that his dismissal and the resultant inability to find employment on the ground of the authorities’ conclusion under the Act were unlawful.
On 6 August 1999 the Higher Administrative Court accepted the applicant’s claim, quashing the conclusion of 26 May 1999 and reinstating him. The court found that the period of the applicant’s studies at the KGB school from 1985 to 1990 was not to be taken into account for the purposes of the Act, that the applicant had worked in the KGB for a period of five months in 1990-1991, that he had not dealt with political matters while working there, and that in any event he had been a secret informer of the Lithuanian authorities. The court concluded that the exceptions under Article 3 of the Act applied to the applicant, and that his dismissal had been unlawful.
Following an appeal by the security intelligence authorities,
on 25 October 1999 the Court of Appeal quashed the judgment of 6 August 1999. The appellate court found that, while the first instance court had properly found that the applicant had worked at the KGB for only five months, it had not been established that he had worked there as a secret informer of the Lithuanian authorities, with the result that he could not benefit from the exceptions under Article 3 of the Act.
The applicant submitted a cassation appeal. By decision of 28 January 2000 the President of the Supreme Court allowed the appeal. However, by a final decision of 20 April 2000, the full Supreme Court refused to examine the appeal and discontinued the cassation procedure for want of jurisdiction.
None of these proceedings were public.
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 proceedings determining the lawfulness of the conclusions of the security intelligence authorities in their regard involved a determination of an alleged criminal offence against them. They maintain that they thereby became subject to restrictions under Article 2 of the Act, losing their jobs and incurring major pecuniary and non-pecuniary loss. They complain that the Act does not provide for a right to “a court” within the meaning of Article 6 of the Convention to contest the application of the Act to them. The applicants also allege that the principles of a fair hearing and the presumption of innocence were violated. They further allege that the proceedings were not public, and that the courts wrongly established the facts and incorrectly applied the norms of domestic law in their cases.
The applicants state that the legal proceedings in their cases were also “civil” within the meaning of Article 6 § 1. However, they were not public. The second applicant alleges irregularities with respect to the jurisdiction of the administrative courts and a denial of access to the Supreme Court.
2. The applicants further complain under Article 7 of the Convention that they were punished retroactively without any basis in law.
3. Under Article 8 of the Convention, the applicants complain about the current ban under Article 2 of the Act on their finding employment in various private sector spheres.
4. The applicants next complain that the Act breached Article 14 of the Convention. They claim that their dismissal from their jobs under Article 2 of the Act and the current ban on their finding employment in line with their academic qualifications as, respectively, a sports instructor and a lawyer, or another job in the public service and many private businesses, unjustifiably discriminates against them on account of their KGB past.
The applicants allege, in particular, that since the end of their KGB careers they have been loyal to the idea of Lithuanian independence. They were nonetheless subjected to measures under the Act simply because of their former employment. In the applicants’ view, there are no valid grounds for imposing on them any prohibition on engaging in a trade or profession.
5. Under Articles 10 and 14 of the Convention, the applicants complain about their dismissal from their jobs solely on the basis of their former employment with the KGB. They allege that this interference with their Convention rights was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. The lack of “legality” of the Act is confirmed by the fact that it provides for collective rather than individual responsibility of all former KGB employees, depriving them of their public and private jobs regardless of their personal history and contribution to Lithuanian society.
Furthermore, the facts that the Act does not specifically provide for access to a court to contest the application of the Act to them, that dismissal is effected on the basis of the impugned legislation and that the procedures which they initiated lack suspensive effect also point to the existence of “unlawfulness” under Article 10 of the Convention.
Moreover, in the applicants’ view, the Act pursues no public interest for the purposes of the second paragraph of Article 10 of the Convention, as it entered into force almost ten years after Lithuania had regained independence, thereby failing to achieve the purported aim of ensuring the loyalty of former KGB employees to the Lithuanian State and its Constitution. The only aim of the Act, according to the applicants, is the discriminatory and arbitrary will of the legislature to punish them for their past views as a result of which they had briefly found employment in the KGB.
In any event, the applicants argue that their dismissal in the circumstances was disproportionate to any public interest which may have been pursued by the Act, in that during their work as, respectively, a tax inspector and prosecutor, they had been loyal to the idea of Lithuanian independence and the democratic principles enshrined in the Constitution.
The second applicant submits in particular that his loyalty was recognised by the Lithuanian authorities since they had given him the responsibility, for more than 8 years, for investigating organised criminal activities and complex corruption cases at the Office of the Prosecutor General. He never received a disciplinary reprimand or other sanction throughout his career as a prosecutor. On the contrary, during that career he was promoted more than once for his irreproachable work. Therefore, his dismissal from that job under the Act on a mere formality, no account being taken of his personal contribution to the Lithuanian State and society, was incompatible with his rights under Articles 10 and 14 of the Convention.
The applicants conclude that their dismissal from their jobs and the current ban on their finding employment in various spheres of the public and private sectors violate the above provisions.
THE LAW
1. Under Article 6 of the Convention, which guarantees the right to a fair hearing in the determination of the “civil rights and obligations” of a person or “a criminal charge” against him, the applicants allege various irregularities in the domestic proceedings.
The Government submit that Article 6 does not apply to the impugned proceedings, whereas the applicants contest the Government’s submissions.
The Court notes that the proceedings in the present case concerned the dismissal of the applicants from, respectively, the Inland Revenue and the Office of the Prosecutor General in view of their status as former employees of the KGB. Their dismissal was effected under Article 2 of the Act (see the ‘Relevant domestic law and practice’ section above).
As to the applicability of Article 6 § 1 of the Convention to the proceedings at issue, the Court recalls its Pellegrin v. France judgment ([GC], no. 28541/95, §§ 64-71, Reports of Judgments and Decisions 1999-VIII) in which it was stated that employment disputes between the authorities and public servants whose duties typified the specific activities of the public service, in so far as the latter were acting as the depositary of public authority responsible for protecting the general interests of the State, were not “civil” and were excluded from the scope of Article 6 § 1 of the Convention. The Court noted that a manifest example of such activities was provided by the armed forces and the police.
As to the facts of the present case, the Court observes that both the Inland Revenue and the Office of the Prosecutor General are typical public service functions. The applicants, being, respectively, a tax inspector and a prosecutor, had specific responsibilities in the field of executive power and the administration of justice, i.e. spheres in which States exercise their sovereign authority. It would add that, as regards the functions of the first applicant, it has had occasion to pronounce on the specific nature of the sphere of taxation, both as regards the applicability of Article 6 under its civil head to tax proceedings (see Ferrazzini v. Italy, [GC], no. 44759/98, Reports 2001-VII) and to the wide margin of appreciation which States enjoy, under Article 1 of Protocol 1, “to enact such laws as they deem necessary for the purpose of securing the payment of taxes” (see, Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, judgment
of 23 February 1995, Series A no. 306-B, pp. 48-49, § 60). As regards the second applicant, it further recalls that it has already ruled that a judge has specific responsibilities in the field of administration of justice, which is a sphere in which States exercise sovereign powers. Consequently, the judge participates directly in the exercise of powers conferred by public law and performs duties designed to safeguard the general interests of the State (Pitkevich v. Russia (dec.) no. 47936/99, 8 February 2001). There is no reason to depart from that reasoning and conclusion with respect to a member of the prosecution service in so far that such a service contributes to the administration of justice.
It would observe also that the present case is to be distinguished from the cases of Volkmer v Germany ((dec.), no. 39799/98, 22 November 2001) and Petersen v. Germany ((dec.), no. 39793/98, 22 November 2001). In those decisions, the Court found that Article 6 was applicable under its “civil” head in regard to proceedings which led to the dismissal of the applicants, both teachers, in view of their former collaboration with the security services of the German Democratic Republic. For the Court, despite their important educational functions, teachers could not be considered depositories of public authority responsible for protecting the general interests of the State in accordance with the principles established in the above mentioned Pellegrin judgment.
With these considerations in mind, the Court finds that the dispute concerning the applicants’ dismissal under the Act did not concern the “civil rights and obligations” of the applicants. Article 6 does not therefore apply to the proceedings at issue.
The question remains whether the impugned proceedings could be considered as determining “a criminal charge” against the applicants. It is to be noted that as a result of the proceedings the applicants not only lost their jobs in the public service but also became subject to various other employment restrictions under Article 2 of the Act in view of their former employment with the KGB.
With a view to determining whether proceedings can be considered as “criminal”, the Court has regard to three criteria: the legal classification of the offence in question in national law, the very nature of the offence and the nature and degree of severity of the penalty (see, in particular, Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 82; Pierre-Bloch v. France, judgment of 21 October 1997, Reports 1997-VI, § 53).
As regards the legal classification of the offence in Lithuanian law and the very nature of the offence, the Court notes that the Act was adopted in 1998 and became effective in 1999. Under the Act, former employees of the KGB lost their right to be employed by public authorities as well as by certain private companies. Although the legislator stated in Article 1 of the Act that the KGB was “a criminal organisation”, the fact remains that being a former member of that organisation is not a criminal offence under the Lithuanian Criminal Code. It is also clear from the decision of the Constitutional Court of 4 March 1999 that the legislator’s intention in passing the impugned Act was to prescribe “security cleansing” measures in respect of former Soviet security officers and to restrict their employment possibilities where there exists suspicion that they may have been disloyal to the Lithuanian State (see the ‘Relevant domestic law and practice’ section, above). The Court considers therefore that the Act does not belong to Lithuanian criminal law, but to the sphere of employment law. Nor can the fact of being a former member of the Soviet secret services be described as “a criminal offence”.
As regards the nature and degree of severity of the penalty that the applicants suffered in application of the Act, the Court notes that as a result of their KGB history the applicants incurred two types of penalties: firstly, they lost their employment in the public service, and, secondly, they were unable to find employment in different spheres of activity listed by the Act for a period of ten years from the entry into force of the law, that is until 1 January 2009. The purpose of the penalties was thus to prevent former employees of a foreign secret service from employment in public institutions and other spheres of activity vital to the national security of the State. The Court considers that, having regard to this purpose, the penalties at issue fall outside the “criminal” sphere.
Finally, the Court observes that the severity of the employment restrictions applied to the applicants under the Act was not such as to bring the issue into the “criminal” sphere.
Having regard to the foregoing considerations, the Court concludes that Article 6 § 1 does not apply to the impugned proceedings under its “criminal” head either (see, a contrario, Streletz, Kessler and Krenz v. Germany, [GC], nos. 34044/96, 35532/97 and 44801/98, Reports 2001-II).
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and that it should be rejected under Article 35 § 4 thereof.
2. Under Article 7 of the Convention, 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 also 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 of the Convention 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 case 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 State institutions and other 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.
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 also breached Article 10 of the Convention, alone and in conjunction with Article 14.
Article 10 of the Convention 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 and were deprived of any possibility to find proper employment on account of their former views reflected in their previous employment with the KGB. 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 had 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.
For these reasons, the Court, by a majority,
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 application inadmissible.
T. L. EarlyL. Loucaides
Deputy RegistrarPresident
Full & Egal Universal Law Academy