KUŽMARSKIENĖ v. LITHUANIA
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
1. The applicant, Ms Jolanta Kužmarskienė, is a Lithuanian national who was born in 1973 and lives in Joniškis. She was represented before the Court by Ms D. Balčiūnienė, a lawyer practising in Joniškis. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2010 Šiauliai Remand Prison (hereinafter, “the prison”) published a recruitment notice for a psychologist. The applicant applied for the position. 5. On 14 June 2010 the prison’s human resources division sent the applicant for a medical examination at the Central Medical Expert Commission of the Medical Centre of the Ministry of Interior (hereinafter, “the Commission” – see paragraph 23 below). 6. On 7 July 2010 the applicant went for the examination, but after her height was measured the process was terminated and the applicant was told that she was unfit for the position because she was too short. The Commission noted that the applicant’s height was 151 cm and she was informed that she was diagnosed as being physically underdeveloped due to lack of proteins and minerals (sulėtėjusi raida dėl baltymų ir energetinių medžiagų trūkumo). The Commission also stated that domestic regulations provided that women smaller than 155 cm were unfit for work within the security and lawenforcement services (see paragraph 25 below). 7. In July 2010 the applicant wrote to the Minister of Interior and the Minister of Health and complained about the fact that she had been found unfit for service by the Commission. The Ministry of Health replied that the Commission’s decisions could be appealed against in accordance with the rules of administrative procedure (see paragraph 40 below). 8. The applicant also complained to the Parliamentary Ombudsperson, who in November 2010 established that the Commission had performed the medical examination in accordance with the provisions of domestic law (see paragraph 24 below). The Ombudsperson held, however, that the Ministry of Interior and the Ministry of Health had not replied to a question about the specific reason for setting the height requirements and decided that the applicant’s requests had not been fully examined. The Ombudsperson thus suggested that the Ministry of Interior and the Ministry of Health should in the future oblige employees to follow the requirement to provide comprehensive information. 9. The applicant also complained to the Equal Opportunities Ombudsperson, who in November 2010 held that the domestic regulation in question was more favourable to men than women. According to medical experts, men were considered small if their height was between 168 and 171 cm while women were considered small if their height was between 155 and 156 cm. The contested regulation provided that men were unfit for service in the security and law-enforcement bodies if they were smaller than 160 cm while women were considered unfit for such service if they were smaller than 155 cm. The Equal Opportunities Ombudsperson also stated that there was no explanation why officers who did not carry out operational duties were considered unfit for service if they were short. 10. On 31 July 2010 the applicant lodged a complaint with the Vilnius Regional Administrative Court. She asked the court to annul the Commission’s decision that she was unfit for the position and the diagnosis that she was physically underdeveloped. On 1 December 2010 the Vilnius Regional Administrative Court decided that there had been no medical examination of the applicant, except for measuring her height. The court also raised doubts as to whether a domestic regulation which referred merely to height for acceptance into government service, without any additional examination (see paragraph 25 below), was in accordance with the Constitution and the Law on Equal Opportunities and decided to refer the matter to the Supreme Administrative Court. The examination of the applicant’s case was suspended awaiting the decision of the latter court (see paragraph 28 above). 11. On 2 November 2011 the Supreme Administrative Court noted that the Interior Ministry Service Statute provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions (see paragraph 22 below). However, there was no evidence that a person’s height, if not related to other health issues, was a reasonable ground to diagnose such a person as being physically underdeveloped. The court did not question the possibility of setting various requirements (including height) to hold certain positions, but held that the contested provision was contrary to the Interior Ministry Service Statute as it did not differentiate the height requirements according to profession and was not based on any inability to perform certain functions. 12. The proceedings before the Vilnius Regional Administrative Court resumed. On 8 November 2011 the applicant was asked to set out her complaint in a more specific way (patikslinti skundo reikalavimą) and to ask the court to annul the prison’s decision on terminating the employment procedure. On the same day, the prison was asked to provide the court with a document, stating who, when and by what decision terminated the employment procedure. 13. On 22 November 2011 the applicant, following the Vilnius Regional Administrative Court’s proposal, stated her complaint in more specific terms and asked the court to also annul the prison’s decision to terminate the procedure to employ her. On 29 November 2011 the Vilnius Regional Administrative Court set a time-limit for the applicant to remedy shortcomings in her complaint. The court stated that the applicant had complained about the decision to terminate the procedure to employ her; however, the prison administration had indicated that there had been no separate decision on that issue. The court held that in such cases only a final decision by the director of the institution in question could be complained of and that a decision by the Commission was only an intermediate document. The court thus suggested that the applicant again state her complaint more specifically and asked the prison to take a decision on terminating the employment procedure. There is no information that the prison had taken that decision in writing (see paragraph 15 below). 14. The applicant set out her complaint again on 7 December 2011. She asked the court to oblige the prison to take a decision on terminating her employment procedure; to annul that decision; to annul the Commission’s decision that she was unfit for service; and to annul the Commission’s diagnosis that she was physically underdeveloped. 15. On 27 December 2011 the Vilnius Regional Administrative Court decided to terminate the part of the case in which the applicant sought to annul the Commission’s decision and decided to annul instead the prison’s decision on terminating the employment procedure. The court observed that the Commission had taken its decision without any medical advice and thus it had been unlawful and unfounded. The court further referred to the Supreme Administrative Court’s decision of 2 November 2011 (see paragraph 11 above and paragraph 27 below) and held that the regulation that had been found to be contrary to the Interior Ministry Service Statute was not applicable from the date of issuance of the court’s decision, 10 November 2011. The court also referred to a Supreme Administrative Court case where the rules for appealing against decisions by the Commission had been explained (see paragraph 41 below). As a result, the Vilnius Regional Administrative Court held that in the applicant’s case the decision which had affected her the most was that of the prison and not the Commission’s and thus the latter could not be the subject of examination by the court. The court also noted that the prison’s decision to terminate the procedure for the applicant’s employment had not been set down in writing, but decided that the date it had been taken was when the prison had received the Commission’s decision, which was 13 July 2010. The court referred the matter back to the prison so it could examine the applicant’s employment application afresh and send her for a special medical examination. 16. In January 2012 the applicant, the prison and the Commission lodged appeals with the Supreme Administrative Court. 17. The applicant sought to annul both the Commission’s decision and that of the prison to terminate the employment procedure. The applicant disagreed with the Vilnius Regional Administrative Court’s conclusion that the Commission’s decision had not affected her situation. She argued that the Commission’s decision had been the ground for the prison to terminate the employment procedure. She also noted that the prison had not issued a written decision on terminating the employment process and that the procedure to complain about such a decision was unclear. She also stated that she had not asked the court of first instance to refer the matter of her employment back to the prison because by that time the judicial proceedings had taken more than a year and the position at the prison had probably already been taken. 18. The prison argued that the Commission’s decision had been an independent act with legal consequences for the applicant, namely it had prevented her from being a candidate for the position of psychologist. It did not agree that the negative consequences had been caused by its own decision, which had not even been set down in writing. The Commission stated that the applicant’s complaint should have been dismissed as unfounded because it was not clear how an employing institution should act if there was a decision by the Commission that a person was unfit for service and that person thought otherwise. In accordance with the case-law of the Supreme Administrative Court, a person in such a situation would lose the possibility to question the lawfulness of the Commission’s decision. 19. On 21 June 2012 the Supreme Administrative Court amended the Vilnius Regional Administrative Court’s decision and held that the Commission’s decision could not be regarded as an independent document because it had not been an individual administrative act and the Commission was not a public authority. The court also stated that the Commission’s decision had only been an intermediate step in the employment procedure and could not be contested before the domestic courts. Even if it had been held that the Commission’s decision could be a matter for an administrative case, the applicant’s right to continue the employment procedure would not in fact have been protected because the court could not impose an obligation on the institution where the applicant had aimed to be employed on the grounds of the Commission’s allegedly unlawful decision. The court also held that examination of a case by a court was pointless if a person’s rights could not be defended. The decision which the applicant could have challenged was the one by the prison. The court stated, however, that the applicant had submitted contradictory claims (reiškė prieštaringus reikalavimus), that is, on the one hand she had asked that the prison be obliged to take a decision on terminating the employment procedure and, on the other hand, that the prison annul its decision on terminating the procedure. The court also noted that the applicant had not indicated any remedy in defence of her rights before the court of first instance; however, that court had not held that circumstance to be a shortcoming in the claim. In order to defend the applicant’s rights to the maximum, it had applied the provisions of administrative law and had chosen the remedy that had best met the applicant’s requirements. That was why the employment matter had been referred back to the prison. The court held that a decision stating that the applicant’s rights had been breached had no consequences and was not the right way to protect her rights. The court also underlined that the applicant had not wanted to continue the employment procedure and that she had lodged her complaint with the domestic courts without any indication of possible measures of redress. As a decision by a domestic court that merely indicated that someone’s rights had been breached did not lead to any material or legal consequences for that person, such complaints were not subject to examination by the administrative courts. The court therefore decided to terminate the case. 20. Article 29 of the Constitution provides that everyone is equal before the law, courts, and other state institutions and officials. Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views. 21. Article 5 § 1 (1) of the Law on Equal Opportunities provides that when implementing equal treatment provisions, an employer, regardless of the person’s age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, must apply the same recruitment criteria and employment conditions when employing or recruiting someone to public service, except in cases provided for by law. Those include restrictions on the grounds of age, a requirement to know the official State language, a prohibition on taking part in political activities, different rights applied on the basis of citizenship and special measures applied in the healthcare, work safety, employment and labour market sphere, which at the same time also aim to create and apply conditions and opportunities guaranteeing and promoting the integration of the disabled into the labour market. 22. At the material time, Article 6 § 1 (4) of the Interior Ministry Service Statute (Vidaus tarnybos statutas) provided that a person aiming to be employed by the domestic security and safety services had to be healthy enough to perform such functions. The health requirements are set by the Minister of Interior and the Minister of Health. 23. Article 10 § 1 of the Prison Department Statute of Service (Tarnybos Kalėjimų departamente prie Lietuvos Respublikos teisingumo ministerijos statutas) provided that people aiming to be employed at the Prison Department had to be citizens of Lithuania, at least 18 years old, with a sufficient knowledge of the Lithuanian language and a sufficient level of education, personal qualities, physical ability and health. Article 10 § 4 provided that candidates’ health had to be examined by the Medical Centre of the Ministry of Interior at the request of the Prison Department. Article 11 § 1 (1) provided that a person could not be accepted for work by the Prison Department or related institutions if he or she was found to be unfit for service by the Commission. Article 11 § 3 provided that appeals against decisions regarding a refusal of employment could be made to a court, in accordance with the Law on Administrative Proceedings. 24. Point 2 of the order of the Minister of Interior of 5 August 2008, No. 1V-299 (Lietuvos Respublikos vidaus reikalų ministro įsakymas „Dėl specializuotosios medicininės ekspertizės organizavimo ir atlikimo tvarkos aprašo patvirtinimo“, hereinafter, “the order”) provided that the Commission was part of the Medical Centre of the Ministry of Interior, performing specialised medical expert examinations. An expert examination is a decision by Commission doctors indicating a health disorder in accordance with the international statistical classification of health disorders and problems. A person under examination is a person who aims to be employed by the domestic security and safety services, an officer, former officer or student who is sent for examination by the Commission. The status of a person being examined by a medical expert, including the carrying out of laboratory and functional analyses, is equivalent to that of a patient and the provisions of the Law on Patients’ Rights and Compensation for Health Damage are applicable. 25. At the material time, Point 17 § 2 of the order of the Minister of Interior and the Minister of Health of 21 October 2003, No. 1V-380/V-618 (Lietuvos Respublikos vidaus reikalų ministro ir Lietuvos Respublikos sveikatos apsaugos ministro įsakymas „Dėl sveikatos būklės reikalavimų asmenims, pretenduojantiems į vidaus tarnybą, pageidaujantiems mokytis vidaus reikalų profesinio mokymo įstaigose, kitose mokymo įstaigose Vidaus reikalų ministerijos siuntimu, bei vidaus tarnybos sistemos pareigūnams sąvado patvirtinimo“) provided that if a lack of proper development had led to a man being shorter than 160 cm or a woman being shorter than 155 cm, then they were unfit for service in the security and law-enforcement bodies. No exceptions to this rule were provided. 26. Point 17 of the order of the Minister of Interior and the Minister of Health of 6 April 2012, No. 1V-291/V-308, now provides that if a man is smaller than 165 cm or a woman smaller than 151 cm because of inadequate development then they are unfit for service in domestic law-enforcement, security or safety bodies. 27. The Supreme Administrative Court has decided that Point 17 § 2 of the 2003 order (see paragraph 25 above) was contrary to the Interior Ministry Service Statute in so far as it did not differentiate height requirements according to profession and was not based on any inability to perform certain functions (Supreme Administrative Court decision of 2 November 2011, no. I-662-11/2011, taken in the applicant’s case – see paragraph 11 above). 28. Article 112 § 1 of the Law on Administrative Proceedings (hereinafter, “the Law”) provided that a civil or specialised court had the right to suspend the examination of a case and address a request to an administrative court to decide whether a normative administrative act (or part of it) that had to be applied in a specific case complied with a law or Government regulation. Article 112 § 2 provided that the civil or specialised court would renew its examination of the case after the administrative court’s decision. 29. At the material time, Article 115 § 1 (2) of the Law provided that one possible decision for the administrative court was to hold that a normative administrative act (or part of it) was contrary to the law or Government regulation and to annul it. 30. In addition, Article 116 § 1 of the Law provided that a normative administrative act (or part of it) became null and void and inapplicable from the date of the official issue of the administrative court’s decision to recognise that act (or part of it) as unlawful. 31. The Supreme Administrative Court has held that public administration bodies have to follow the principle of the rule of law and that ultra vires acts must be declared unlawful (decisions of the Supreme Administrative Court of 25 July 2005, No. I1-2/2006; of 28 November 2008, No. I444-4/2008; and of 11 May 2011, No. I444-14/2011). 32. Article 3 § 1 of the Law provided that administrative courts decided legal disputes in the field of public administration. 33. Article 5 § 1 of the Law provided that any person with an interest in a case had the right to lodge a complaint with a court in order to defend his or her rights or interests. 34. Article 23 § 2 (7) of the Law provided that such a complaint had to set out the applicant’s claims. 35. Article 37 § 2 (1) of the Law provided that complaints had to be refused if they were not subject to examination by a court. 36. Article 101 § 1 of the Law provided that a court had to terminate any case if it was not in its jurisdiction, except for cases that were within the jurisdiction of the civil courts. 37. Article 2 § 1 of the Law on Public Administration provided that public administration was an activity of a public administration body intended to implement laws and other regulations. It comprised the taking of administrative decisions, overseeing the implementation of laws and administrative decisions, the provision of administrative services provided for in laws, the administration of the provision of administrative services and the internal administration of a public administrative body. 38. Article 6 § 2 of the Law on Public Administration provided that normative administrative acts could only be enacted by public administration bodies. 39. Article 2 § 3 of the Law provided that administration bodies were those that performed the functions of public administration. 40. Point 79 of the order (see paragraph 24 above) provided that the Commission’s decisions could be appealed against in court, in accordance with the Law. 41. The Supreme Administrative Court has held that only the final decision of an institution could be examined by an administrative court. Many documents are drawn up in the course of administrative procedure, but they are usually intermediate documents and do not decide any issues related to a person’s material legal rights. An administrative court cannot examine a document if it has no legal consequences. A Commission decision is only an intermediate document that has no legal consequences (decision of the Supreme Administrative Court of 20 June 2011, No. A26169/2011). 42. At the material time, Article 24 § 1 of the Law on Patients’ Rights and Compensation for Health Damage provided that compensation for pecuniary and non-pecuniary damage caused by breaching a patient’s rights was provided in accordance with that law itself and the Civil Code. Article 24 § 2 provided that a patient or other persons who had a right to compensation had to send a claim to the Commission on Damage Caused to Patients’ Rights. Article 24 § 3 provided that the Commission on Damage Caused to Patients’ Rights was a compulsory institution for out-of-court settlements for disputes related to violations of patients’ rights and assessments of the amount of damages. Article 24 § 8 provided that any patient or other person who disagreed with a decision by the Commission on Damage Caused to Patients’ Rights could lodge a court complaint within thirty days of the decision or the date they found out about the decision. 43. The Supreme Court has held that a doctor’s main duty is to provide qualified and diligent health-care services to patients (decisions of the Supreme Court of 14 October 2008, No. 3K-3-478/2008; of 12 February 2010, No. 3K-3-77/2010; and of 12 April 2010, No. 3K3158/2010). 44. Article 15 § 1 (3) of the Law (see paragraph 28 above) provides that administrative courts decide cases concerning damage caused by the unlawful acts of public authorities, as provided for in Article 6.271 of the Civil Code (see paragraph 47 below). 45. Article 88 of the Law provides that an administrative court can take the following decisions in respect of a case: 1) reject the complaint as unfounded; 2) satisfy the claim and annul the contested regulation (or any part thereof), or oblige the relevant administrative entity to end the violation in question or execute any other requirement set by the court; 3) satisfy the claim and oblige the administrative body of a municipality to implement the law, or execute a Government or other regulation; 4) satisfy the claim and settle the dispute in any other manner set by the law; 5) satisfy the claim and award damages for unlawful acts by the public authority (Article 6.271 of the Civil Code). 46. Article 6.248 § 1 of the Civil Code provides that civil liability only arises where a person is at fault and a debtor is presumed to be at fault, except where laws or contracts provide otherwise. 47. Article 6.271 § 1 of the Civil Code provides that damage resulting from unlawful acts of institutions of public authority must be compensated for by the State from the State budget, irrespective of the responsibility of a particular public servant or other employee of public authority institutions. Damage resulting from unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget, irrespective of whether an employee is at fault. Article 6.271 § 2 provides that for the purposes of the Article, the notion “an institution of public authority” means any public-law body (a State or municipal institution, official, public servant or any other employee of those institutions, and so forth), as well as a private person executing the functions of a public authority. Article 6.271 § 3 provides that for the purposes of the Article, the notion “act” means any act (active or passive) by an institution of public authority or its employees, that directly affects people’s rights, liberties and interests (legal acts or individual acts enacted by the institutions of state and municipal authority, administrative acts, physical acts, and so forth, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases and orders). Article 6.271 § 4 provides that civil liability on the part of the State or a municipality subject to the Article arises when the employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees. 48. The Supreme Administrative Court has held that in order for a right to compensation for damage to arise the law does not require that unlawful acts by public institutions are annulled or declared void in accordance with the law (decisions of the Supreme Administrative Court of 30 March 2007, No. A10-332/2007; of 2 November 2009, No. A556-1241/2009; of 28 January 2010, No. A822-207/2010; of 30 November 2010, No. A8221419/2010; and of 16 January 2014, No. A-492-80/2014). 49. The Supreme Administrative Court has held that when considering the issue of compensation for damage, courts have to examine the factual grounds of such damage, irrespective of the presence of a dispute with regard to the lawfulness of such grounds (decision of the Supreme Administrative Court of 16 June 2006, No. A4-1030/2006). 50. The Supreme Administrative Court has held that courts have to fully examine the lawfulness of acts that might have caused someone damage, irrespective of separate court proceedings on the lawfulness of such acts (Supreme Administrative Court decision of 16 June 2006, No. A5561655/2008).