CASE OF SIDABRAS AND DŽIAUTAS v. LITHUANIA
Violation of Art. 14+8;Not necessary to examine Art. 8;No violation of Art. 10 or 14+10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
10. The first applicant was born in 1951 and lives in Šiauliai. The second applicant was born in 1962 and lives in Vilnius. The facts of the case, as submitted by the parties, may be summarised as follows. 11. In 1974 the first applicant graduated from the Lithuanian Physical Culture Institute, qualifying as a certified sports instructor. 12. From 1975 to 1986 he was an employee of the Lithuanian branch of the Soviet Security Service (the KGB). After Lithuania declared its independence in 1990, he found employment as a tax inspector at the Inland Revenue. 13. On 31 May 1999 two authorities – the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People – jointly concluded that the first applicant was subject to the restrictions provided under section 2 of the Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation (“the KGB Act” – see paragraph 24 below). The conclusion confirmed that the first applicant had the status of a “former KGB officer” (see paragraphs 26-27 below). On 2 June 1999 the first applicant was dismissed from the Inland Revenue on the basis of that conclusion. 14. The first applicant brought an administrative action against the security intelligence authorities, claiming that he had been engaged only in counterintelligence and ideology work while employed by the KGB, and that he had not been involved in the violation of individual rights by that organisation. He argued that his dismissal under section 2 of the KGB Act and the resultant inability to find employment were therefore unlawful. 15. On 9 September 1999 the Higher Administrative Court found that the conclusion of 31 May 1999 had been substantiated and that the first applicant was subject to the restrictions provided under section 2 of the KGB Act. In this respect, the court held that the applicant had the status of a “former KGB officer” within the meaning of the KGB Act, since he had occupied one of the positions mentioned in the list of 26 January 1999. 16. On 19 October 1999 the Court of Appeal dismissed the first applicant’s appeal. It found that he had not occupied a KGB position dealing only with criminal investigations and could not therefore benefit from the exceptions listed under section 3 of the KGB Act. 17. On an unspecified date in the 1980s, the second applicant graduated from Vilnius University as a qualified lawyer. 18. From 11 February 1991 he worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating primarily cases of organised crime and corruption. 19. On 26 May 1999 the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People jointly concluded that from 1985 to 1991 the second applicant had been an employee of the Lithuanian branch of the KGB, that he had the status of a “former KGB officer” and that he was thereby subject to the restrictions provided under section 2 of the KGB Act. On 31 May 1999 the second applicant was dismissed from his job at the Office of the Prosecutor General on the basis of that conclusion. 20. The second applicant brought an administrative action against the security intelligence authorities and the Office of the Prosecutor General. He claimed that from 1985 to 1990 he had merely studied at a special KGB school in Moscow and that from 1990 to 1991 he had worked in the KGB as an informer for the Lithuanian security intelligence authorities and should therefore be entitled to benefit from the exceptions under section 3 of the KGB Act. He claimed that his dismissal under the Act and his resultant inability to find employment were unlawful. 21. On 6 August 1999 the Higher Administrative Court allowed the second applicant’s claim, quashed the conclusion of 26 May 1999 and ordered him to be reinstated. The court found that the period of the second applicant’s studies at the KGB school from 1985 to 1990 was not to be taken into account for the purposes of the KGB Act, that he had worked in the KGB for a period of five months in 1990-91, that he had not occupied a KGB position dealing with political investigations and that, in any event, he had been a secret informer for the Lithuanian authorities. The court concluded that the exceptions under section 3 of the KGB Act applied to the second applicant and that his dismissal had therefore been unlawful. 22. Following an appeal by the security intelligence authorities, on 25 October 1999 the Court of Appeal quashed the judgment of 6 August 1999. It held that, although the first-instance court had properly found that the second applicant had worked at the KGB for only five months, it had not been established that he had worked there as a secret informer for the Lithuanian authorities. Accordingly, he could not benefit from the exceptions under section 3 of the KGB Act. 23. The second applicant appealed against the Court of Appeal’s judgment. By a 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 proceedings for lack of jurisdiction. 24. The Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation (Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos – “the KGB Act”) was enacted on 16 July 1998 by the Seimas (the Lithuanian parliament) and promulgated by the President of the Republic. The KGB Act reads as follows: “The USSR State Security Committee (NKVD, NKGB, MGB, KGB – hereinafter ‘the SSC’) is recognised as a criminal organisation which was responsible for war crimes, genocide, repression, terror and political persecution in the territory of Lithuania when occupied by the USSR.” “For a period of ten years from the date of entry into force of this Act, former employees of the SSC may not work as public officials or civil servants in government, local or defence authorities, the State Security Department, the police, the prosecution, courts or diplomatic service, customs, State supervisory bodies and other authorities monitoring public institutions, as lawyers or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the educational system as teachers, educators or heads of institutions[;] nor may they perform a job requiring the carrying of a weapon.” “(1) The restrictions provided for in section 2 shall not be applied to 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 Research into the Genocide and Resistance of the Lithuanian People and the State Security Department may [recommend by] a reasoned application that no restrictions under this law be applied to former permanent employees of the SSC who, within three months of the date of the entry into force of this Law, report to the State Security Department and disclose all information in their possession ... about their former work at the SSC and their current relations with former SSC employees and agents. A decision in this respect shall be taken by a commission of three persons set up by the President of the Republic. No employees of the Centre for Research into the Genocide and Resistance of the Lithuanian People or the State Security Department may be appointed to the commission. The commission’s rules shall be confirmed by the President of the Republic.” “The procedure for implementation of the Act shall be governed by [a special law].” “This Act shall come into force on 1 January 1999.” 25. Following the examination by the Constitutional Court of the compatibility of the KGB Act with the Constitution (see paragraph 28 below), on 5 May 1999 section 3 of the KGB Act was amended to the effect that even those individuals who had worked for the KGB after 11 March 1990 could be eligible for the exceptions under section 3 of that Act. 26. On 16 July 1998 a separate law on the implementation of the KGB Act was enacted. Under that law, the Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department were empowered to reach a conclusion on an individual’s status as a “former permanent employee of the KGB” (“former KGB officer”) for the purposes of the KGB Act. 27. On 26 January 1999 the Government adopted a list (“the list”) of positions in various branches of the KGB on Lithuanian territory attesting to a person’s status as a “former KGB officer” for the purposes of the KGB Act. A total of 395 different positions were listed in this respect. 28. On 4 March 1999 the Constitutional Court examined the issue of the KGB Act’s compatibility with the Constitution. The Constitutional Court held in particular that the KGB Act had been passed in order to carry out “security screening” measures on former KGB officers, who were deemed to be lacking in loyalty to the Lithuanian State. The Constitutional Court decided that the prohibition on former KGB officers occupying public posts was compatible with the Constitution. It further ruled that the statutory ban on the holding by former KGB officers of jobs in various branches of the private sector was compatible with the constitutional principle of a 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 sectors in order to ensure the protection of national security and proper functioning of the educational and financial systems. The Constitutional Court also held that the restrictions under the KGB Act did not amount to a criminal charge against former KGB officers. 29. While the KGB Act does not specifically guarantee a right of access to a court to contest the security intelligence authorities’ conclusion, 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, under 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 in force at the material time). 30. Restrictions have been imposed in many post-communist countries with a view to screening the employment of former security agents or active collaborators in the former regimes. In this connection, international human rights bodies have at times found fault with such legislation where it has lacked precision or proportionality, and have characterised it as discrimination in employment or the exercise of a profession on the basis of political opinion (see below). The possibility of appealing to the courts has been considered a significant safeguard, although not sufficient in itself to rectify shortcomings in the legislation. 31. Article 1 § 2 of the European Social Charter provides: “With a view to ensuring the effective exercise of the right to work, the Parties undertake: ... 2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon[.]” This provision, retained word for word in the revised Charter of 1996 (which came into force with regard to Lithuania on 1 August 2001), has been consistently interpreted by the European Committee of Social Rights (ECSR) as establishing a right not to be discriminated against in employment. The non-discrimination guarantee is stipulated in Article E of the revised Charter in the following terms: “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.” The question of the dismissal of public servants on account of their activities under totalitarian regimes has been addressed in the light of these provisions, at least as regards Germany. In its most recent examination of Germany’s compliance with Article 1 § 2 of the Charter (published in November 2002), the ECSR took note of the provisions of the reunification treaty that allow for the dismissal of public servants on the basis of their activities on behalf of the security services of the German Democratic Republic. It concluded that Germany was not complying with its obligations. This was expanded upon in the following terms: “The Committee observes that there is no precise definition of the functions from which individuals can be excluded, either in the form of a refusal to recruit or a dismissal, on the grounds of previous political activities or activities within the former GDR institutions competent in security matters. The Committee has examined the conformity of these provisions in the light of Article 31 of the Charter. Under this provision, restriction of a right enshrined in the Charter is permitted if it is prescribed by law, is necessary in a democratic society and serves one of the purposes listed in the Article. Whilst recognising that the provisions were prescribed by law within the meaning of Article 31 and served one of the purposes listed therein, namely the protection of national security, the Committee considered that they were not necessary within the meaning of Article 31 in that they did not apply solely to services which had responsibilities in the fields of law and order and national security or to functions involving such responsibilities.” The ECSR adopted its conclusions in regard to Lithuania’s implementation of the revised Charter on 28 May 2004. They will be made public at a later date. 32. The International Labour Organisation (ILO) has also adopted a number of relevant international legal instruments. The most pertinent text is ILO Convention no. 111 on Discrimination (Employment and Occupation) of 1958. In its 1996 General Survey, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) restated its interpretation of Convention no. 111, drawing upon examples taken from national law. Regarding Germany, the CEACR’s position was the following (§ 196): “The Committee does not accept the argument that in cases in which persons had been accused of having carried out political activities in the former German Democratic Republic, the more the person had, by the assumption of certain functions, identified himself or herself with that unjust regime, the more incriminated he or she was, and the less reasonable it was that this person hold a position in the current administration.” More recently, however, the CEACR has expressed satisfaction with the German courts’ observance of the principle of proportionality in cases where civil servants challenge their dismissal (see paragraph 3 of the Individual Observation to Germany under Convention no. 111 in 2000). A 1996 survey identifies comparable provisions in the domestic law of a number of other European States. In Bulgaria, section 9 of the Preceding and Concluding Provisions of the Banks and Credit Activity Act of 1992 excluded persons who had served the previous regime in certain capacities from employment in banks. The Bulgarian Constitutional Court ruled in 1992 that this provision was in violation of the Constitution and of ILO Convention no. 111. In the former Czechoslovakia, the so-called Screening Act was passed in 1991, preventing persons who had served the previous regime in a number of capacities from taking up employment in the civil service or parts of the private sector. This legislation was declared unconstitutional by the Slovak Constitutional Court in 1996, which further found it to be incompatible with Convention no. 111. However, it remained in force in the Czech Republic, while the CEACR urged the Czech authorities to have due regard to the principle of proportionality in the application of the Act. In Latvia, the State Civil Service Act of 2000 and the Police Act of 1999 prohibit the employment of persons who worked for or with the KGB. In 2003 the CEACR expressed its dissatisfaction with the above texts in the following terms: “6. The Committee recalls that requirements of a political nature can be set for a particular job, but to ensure that they are not contrary to the Convention, they should be limited to the characteristics of a particular post and be in proportion to its labour requirements. The Committee notes that the above-established exclusions by the provisions under examination apply broadly to the entire civil service and police rather than to specific jobs, functions or tasks. The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1 (2) of the Convention. The Committee recalls that for measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected or proved to be engaged in which are prejudicial to the security of the State. Article 4 of the Convention does not exclude from the definition of discrimination measures taken by reason of membership of a particular group or community. The Committee also notes that in cases where persons are deemed to be justifiably suspected of or engaged in activities prejudicial to the security of the State, the individual concerned shall have the right to appeal to a competent body in accordance with national practice. 7. In the light of the above, the Committee considers the exclusions from being a candidate for any civil service position and from being employed by the police are not sufficiently well defined and delimited to ensure that they do not become discrimination in employment and occupation based on political opinion ...”