(Application no. 26652/02)
7 April 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Zičkus v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 17 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 1. Purpose of the Law
“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. ...”
Article 2. Basic Definitions under the Law
“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). ...”
Article 4. Commission on the assessment of activities of persons who have secretly collaborated with Special 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; ...”
Article 5. Functions of the State Security Department in implementing the Law
“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; ...”
Article 6. Procedure for registration and confession
“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. ...”
Article 7. Entry into the Records
“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.”
Article 9. Limitation of the activity of persons not
included in records
of the State Security Department
“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.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 14
Article 8 of the Convention reads, in so far as relevant, as follows:
“1. Everyone has the right to respect for his private ... life, ...
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, ... 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.”
A. The parties' submissions
1. The Government
2. The applicant
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,432 (three thousand four hundred and thirty two euros) in respect of costs and expenses, plus any taxes that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 7 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint partly dissenting opinion of Judges Tulkens, Cabral Barreto and Zagrebelsky;
(b) dissenting opinion of Judges Jočienė, Tsotsoria and Sajó.
JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS, CABRAL BARRETO AND ZAGREBELSKY
Regarding the application of Article 41 of the Convention, we think that the judgment should have adopted the same decision as in Sidabras and DZiautas v. Lithuania of 27 July 2004 and Rainys and Gasparavičius v. Lithuania of 7 April 2005, which concerned similar issues.
finding of a violation of Article 14 of the Convention taken together
with Article 8 does not, in our opinion,
afford sufficient redress and the applicant should have received
compensation for the pecuniary and
non-pecuniary damage incurred.
DISSENTING OPINION OF JUDGES JOČIENĖ,
TSOTSORIA AND SAJÓ
To our regret, we cannot subscribe to the Chamber's finding of a violation of Article 14 of the Convention in conjunction with Article 8.
In the above-mentioned cases of Sidabras and DZiautas and Rainys and Gasparavičius, the Law provided for a clearly unconditional ban on their employment in various branches of the private sector and, consequently, the Court found such a ban with regard to the private sector to be a disproportionate and thus discriminatory measure, despite the legitimacy of the aims pursued by the State in imposing that ban (see Sidabras and DZiautas, § 61, and Rainys and Gasparavičius, § 36-37).
The Law applicable in the present case, however, is also concerned with one particular consequence of past secret collaboration, namely the fact that all secret collaborators might be open to blackmail. One of the intentions of the Law is to prevent private and institutional blackmail and, as such, it serves national security considerations too. Further, it could be considered that admission of past collaboration furthers national reconciliation and helps to make good past injustices.