CASE OF ŽIČKUS v. LITHUANIA
Remainder inadmissible;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1950 and lives in the Vilnius area. 6. On 4 March 1992 the applicant was awarded a Commemorative “13 January” Medal (bestowed upon persons who distinguished themselves when defending the freedom and independence of Lithuania during the period January-September 1991). By the Presidential order of 30 September 1996 the applicant was awarded the Medal of Founding Volunteers of the Lithuanian Army. 7. On 12 September 2000 a special governmental commission (“the Commission”) found that the applicant had been a “former secret collaborator” (slapta bendradarbiavęs asmuo) under the Law on registering, confession, entry into records and protection of persons who have admitted to secret collaboration with special services of the former USSR, and decided to publish this information in the “Official Gazette” (Valstybės žinios). 8. The applicant brought proceedings before the Vilnius Regional Administrative Court requesting it to quash the Commission’s conclusion as to his former collaboration. On 7 May 2001 the court partly granted the applicant’s claim, establishing that there had been a lack of evidence of the applicant having been a KGB collaborator. 9. On 3 July 2001 the Supreme Administrative Court quashed the lower court’s decision. It was found that the applicant had indeed been a KGB collaborator while working as a sports journalist and travelling abroad in the 1980s. 10. On 23 July 2001 the Commission published information in the “Official Gazette” to the effect that, in the past, the applicant had collaborated with the special services of the former USSR, namely with the KGB. 11. On 27 July 2001 the applicant was dismissed from his post as an official at the Human Resources Department of the Ministry of the Interior. The decree by which he was dismissed stipulated that the reason for the dismissal was the information regarding his collaboration, which the Commission had published on 23 July 2001. 12. The applicant again challenged the Commission’s conclusions in its decision of 12 September 2000 as being null and void. On 31 October 2001 the Vilnius Regional Administrative Court dismissed the action on procedural grounds, finding that there had been a final court decision on the issue. The case was discontinued. 13. On 12 December 2001 the Supreme Administrative Court reopened the proceedings to have the evidence better examined and to establish guidelines for a common judicial practice in similar future cases. 14. On 16 January 2002 the Supreme Administrative Court examined the merits of the applicant’s complaints, dismissing his request to quash the decision of the Vilnius Regional Administrative Court of 31 October 2001. The Supreme Administrative Court found that the lower courts had reasonably concluded that the applicant had secretly collaborated with the secret services of the former USSR. The court noted that the applicant’s rights in examining the evidence and questioning the witnesses had not been curtailed. That decision was final. On an unspecified date the applicant submitted a request to the Supreme Administrative Court seeking the reopening of the procedure, alleging violations of material legal norms in the decisions in his case. On 16 May 2002, the court dismissed his request as unfounded. 15. The applicant alleged that he had been disbarred from practising as a barrister as a result of the impugned domestic decisions. 16. The Law on registering, confession, entry into records and protection of persons who have admitted to secret collaboration with special services of the former USSR (hereafter “the Law”) was enacted on 23 November 1999, and came into effect on 1 January 2000. The Law provided for the creation of a special governmental Commission responsible for the assessment of the activities of persons who had secretly collaborated with such services and the registration of those persons as “former secret collaborators”. The Law, in so far as relevant in this case, reads as follows: “1. The provisions of the Law on the Basics of National Security, whose aim is to create a system of national security protecting the State and its population, human and citizens’ rights and freedoms, and also personal safety, shall be implemented by the present Law, providing protection against the influence, blackmail and recruitment, or attempts to draw into any illegal activity, by the special services of foreign States. The Law shall also ensure the implementation of the State’s right to apply the principle of loyalty and trustworthiness to civil servants and other employees of State government and administration, local government, national defence, the interior affairs system, the Prosecutor’s Office, courts, the Department of State Security, the diplomatic service, customs, State controlled institutions and other State institutions which implement control and management, to attorneys and notaries, and to employees of banks and other credit institutions, or in strategic economic entities, communication systems, protection services and structures thereof, and in other structures providing detective services. ...” “1. A person, who has secretly collaborated with the special services of the former USSR means ... a person ... who has actually and deliberately carried out the tasks and assignments of the special services of the former USSR according to a written or unwritten commitment to collaborate in secret, where the activity is not regulated by statutory regulations or labour laws (agent, resident, confidant, retainer of conspiracy quarters, retainer of a rendezvous flat, non-staff operational employee or other person who has secretly collaborated with the secret services of the former USSR). ...” “1. A ... Commission ... shall be established to assess the activities of persons who secretly collaborated with the special services of the former USSR and to adopt decisions whether to include persons in a report or publication of data concerning secret collaboration. ... 2. Pursuant to the present Law the Commission shall: 1) assess the activities of persons involved in secret collaboration with the special services of the former USSR; 2) adopt decisions concerning the inclusion in the report of persons who have admitted to secret collaboration with the special services of the former USSR; 3) adopt decisions concerning the publication of information about the secret collaboration of persons with the special services of the former USSR, in the instances specified in Article 8 of this Law; 4) ensuring total personal confidentiality, shall encode the secret information transferred to the Commission and adopt decisions concerning the provision of information for research work; ...” “In accordance with the present Law, the State Security Department shall: ... 4) upon the request of persons who have admitted to collaboration in secret with the special services of the former USSR, employ measures to protect them from blackmail and recruitment attempts or efforts to involve them in any illegal activity; ...” “1. Persons who have secretly collaborated with the special services of the former USSR must present themselves within six months of the registration and confession acceptance date, as announced by the Commission in the “Official Gazette”, to register and voluntarily confess in writing, to the State of Lithuania, to have secretly collaborated with the special services of the former USSR, reveal all of the information known to them concerning the activities of the special services, and hand in the documents or objects linked to the special services of the former USSR. ...” “1. Persons who have secretly collaborated with the special services of the former USSR shall be entered in the records by a decision of the Commission if they have voluntarily confessed to having secretly collaborated with the special services of the former USSR, and have submitted all the information within their knowledge in connection with the activity of the special services. 2. The fact of confession and the data submitted by the person who has confessed shall comprise information which constitutes a State secret and which shall be classified as secret and used and declassified according to the procedure established by law ...” Article 8. Protection of persons who have confessed and instances of information publication “1. Information supplied by persons who have been registered, have confessed and have been entered in the records, and the data regarding them, shall be classified and stored according to the procedure established by law. 2. Persons indicated in paragraph one of this Article shall inform the State Security Department if they experience blackmail and recruitment offers or attempts to draw them into any illegal activities, and the State Security Department, on the basis of a request by the persons who have made confessions, shall take measures to protect them and to uncover criminal activity. The entry of persons in records and the information submitted by them shall be declassified if these persons have been convicted by a final judgment of having committed actions that have been acknowledged as acts against humanity, war or crimes of genocide, and by other instances established by law for the declassification of classified information. ... 4. The information regarding secret collaboration with the special services of the former USSR shall be published in the ‘Official Gazette’ in those instances where a person who had secretly collaborated with the special services of the former USSR has failed to admit within six months of the beginning of registration and reception of confessions announced by the Commission, to having secretly collaborated with the special services of the former USSR, and also if he has furnished false information about himself, other persons and the activities of the special services, or has concealed such information. The person who secretly collaborated with the special services of the former USSR shall be given written notice of the decision adopted by the Commission to publicise such information. He may appeal against this decision to the administrative court, within fifteen days of receipt of such notice. The implementation of the decision to make the information public shall be suspended until the court judgment becomes effective.” “1. Persons who have secretly collaborated with the special services of the former USSR, whose data has been made public according to the procedure established in paragraphs 3 or 4 of Article 8 of the present Law, for a period of ten years from the date of publication, may not be employed as teachers in educational institutions, educators or heads of such institutions, occupy positions requiring the carrying of a weapon, or work as Republic of Lithuania civil servants or other employees of State government and administration, municipal authorities, national defence, the interior affairs system, customs, the Prosecutor’s office, courts, the State Security Department, the diplomatic service, State controlled and other State institutions engaged in control and supervision, as attorneys and notaries, or as employees of banks and other credit institutions, or in strategic economic functions, communications systems, protection services and structures thereof and other structures providing detective services. 2. In the event that the data concerning persons who secretly collaborated with the special services of the former USSR has been published in the ‘Official Gazette’ or in other mass media by decision of the Commission, an employer or his representative must, no later than the next working day following the publication of this information, dismiss the employee from his job, without paying him severance pay ... 3. Should the published information regarding a person who secretly collaborated with the special services of the former USSR concern a person who is engaged in legal practice, the Bar Association of Lithuania shall revoke the decision to accredit the person as a lawyer. At the conclusion of a ten-year term, the person shall have the right to be accredited as a lawyer in accordance with the procedure established by law.”