European Court of Human Rights

Information Note on the Court’s case-law No. 168

November 2013

Jokšas v. Lithuania - 25330/07

Judgment 12.11.2013 [Section II] See: [2013] ECHR 1283

Article 10

Article 10-1

Freedom of expression

Dismissal from the armed forces at retirement age, but allegedly on ground of personal opinions: no violation

 

Facts - In 2002 the applicant was employed by the Lithuanian armed forces on a five-year contract which, under specific circumstances, could be rescinded even before the expiry date. In 2006 a Lithuanian newspaper published an article in which the applicant criticised new legislation for inadequately protecting the rights of servicemen in disciplinary proceedings. An internal investigation was initiated, but was eventually discontinued on the ground that the applicant had not violated military discipline. In 2006 the applicant’s contract was terminated because he had reached retirement age, in accordance with the legal provisions in force. The applicant challenged this decision before the administrative courts, alleging that he had been discriminated against on grounds of his personal opinions, and asked the courts to obtain and analyse evidence of other soldiers in his battalion who should also have been dismissed on grounds of age. The applicant’s complaints were dismissed and that decision was ultimately upheld by the Supreme Administrative Court.

Law - Article 6 § 1

(a)  Applicability - The Government argued that Article 6 was not applicable to the applicant’s case, because the dispute at issue could not be regarded as “civil” within the meaning of that provision. The Court noted that the domestic law provided the applicant with the right of access to court, which the applicant had exercised, claiming the right, which was “civil” in nature, to continue his professional military service until the expiry of his existing contract. The dispute before the domestic courts had been genuine and serious and the result of the proceedings directly decisive for the right in question. Article 6 was thus applicable.

Conclusion: preliminary objection dismissed (unanimously).

(b)  Merits - The Court noted that an allegation of discrimination was at the heart of the applicant’s complaint before the domestic courts. Therefore, a comparison between his situation and that of the other servicemen who had allegedly been allowed to continue serving after reaching their retirement age but before the expiry of their contracts was indispensable for the applicant to be able to present his grievance. The domestic courts’ failure to assist the applicant in obtaining evidence in this regard and to give it consideration, or at least to provide reasons why this was not necessary, had denied the applicant an essential means to argue his case. In disputes concerning civil rights, such as the present one, such a limited assessment could not be considered an effective judicial review under Article 6 § 1. Therefore, the proceedings before the domestic courts, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 § 1.

Conclusion: violation (unanimously).

Article 10, alone and in conjunction with Article 14: The Court recalled that Article 10 applied also to military personnel. While Contracting States could legitimately impose restrictions on freedom of expression where there was a real threat to military discipline, they could not rely on such rules for the purpose of frustrating the expression of opinions, even if these were directed against the army as an institution. The internal inquiry into the applicant’s actions regarding his publication in the newspaper was terminated on the ground that he had not violated any legal provisions, and no disciplinary sanction had been imposed on him. Therefore, as far as it concerned that inquiry in itself, the applicant could not claim to be a victim of a violation of the Convention. Furthermore, in the applicant’s case, no new requirements for his post, which he did not meet, had been introduced after the impugned publication nor had any of the applicant’s army superiors made public statements to the effect that he should be discharged from service due to his opinions. Moreover, the obligation to terminate contracts when the retirement age was reached was an established practice of the domestic courts, which had also previously been confirmed by the Supreme Administrative Court. As for the applicant’s colleagues who had allegedly been treated differently from him although they were in a similar situation, the Court noted that they were entitled to serve until the expiry of their contracts, despite the fact that they had reached retirement age because, unlike the applicant, they all held military specialist codes. Therefore, the applicant had not been discriminated against.

Conclusion: no violation (unanimously).

Article 41: EUR 6,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Grigoriades v. Greece, 24348/94, 25 November 1997; Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 15153/89, 19 December 1994)

 

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