Dismissal
II. RELEVANT DOMESTIC LAW AND PRACTICE 64. 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 and came into force on 1 January 1999. Article 2 of the KGB Act provided that former KGB employees would be banned from working in certain areas of the private sector for ten years from the date of entry into force of the Act. Thus, they were not allowed to work as lawyers ( advokatai ) 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 education system as teachers, educators or heads of institutions, nor could they perform a job requiring the carrying of a weapon (for the text of the KGB Act and the domestic law related to it, see the judgment in the case of Sidabras and Džiautas, cited above, §§ 24-29). 65. Article 15 § 1 of the Law on Administrative Court Proceedings stipulates that administrative courts decide cases where the State or a public institution is one of the parties. Article 153 § 2 (1) of that Law allows domestic proceedings to be reopened in an administrative case if the European Court of Human Rights has found that the decision of the national court was contrary to the Convention or its Protocols. Article 366 § 1 (1) of the Code of Civil Procedure provides a similar rule in civil cases. Article 4 of the Code provides that, when applying the law, the lower courts take into consideration the Supreme Court ’ s case-law as to how interpret one or another legal issue. 66. Article 26 § 1 (14) of the Law on the Employment Contract provides that an employment contract is to be terminated if it does not comply with the requirements of the law. Under Article 42 §§ 1 and 2, an employee who disagrees with his or her dismissal may appeal to a court. If the court finds that the employee has been unlawfully dismissed, the court reinstates the employee to his job and the employer must pay the employee compensation for lost earnings. The third paragraph of that article provides that when an unlawfully dismissed employee declares that, if reinstated, working conditions would be untenable, the court may, at that employee ’ s request, refrain from ordering reinstatement and award pecuniary compensation instead. 67. Article 297 §§ 3 and 4 of the Labour Code, regulating disputes over employment contracts, provides that if an employee has been dismissed from his or her job without proper legal grounds, the court will reinstate him or her and order the payment of his or her salary from the time of the unlawful dismissal until the execution of the court ’ s decision. However, should the court establish that the employee may not be reinstated for economic, technological, organisational or similar reasons, or because he may find himself in unfavourable conditions, the court will declare the dismissal unlawful and award severance pay. This payment will depend on the employee ’ s length of service as well as the average salary for the period from dismissal until the court ’ s decision comes into force. 68. Article 418 of the Code of Civil Procedure stipulates that if an employee has made one of the alternative demands provided for by law, the court of first instance, after establishing that there are no grounds for granting the demand made, may on its own initiative, if there is a reason for doing so, apply an alternative measure to protect the employee ’ s interests. 69. Article 187 6 of the Code on Administrative Law Offences stipulates that an employer who has failed to comply with the requirement of the KGB Act to dismiss a “former KGB permanent employee” is liable to a fine of between LTL 3,000 and LTL 5,000. III. RELEVANT INTERNATIONAL MATERIALS 70. The Rules adopted by the Committee of Ministers on 10 January 2001 at the 736 th meeting of the Ministers ’ Deputies for the application of Article 46, paragraph 2, of the European Convention on Human Rights, insofar as relevant, read as follows: Rule 3 “Information to the Committee of Ministers on the measures taken in order to abide by the judgment a. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the State concerned to inform it of the measures which the State has taken in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention. b. When supervising the execution of a judgment by the respondent State, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine whether: - any just satisfaction awarded by the Court has been paid, including as the case may be default interest; and, if required, and taking into account the discretion of the State concerned to choose the means necessary to comply with the judgment, whether - individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention; - general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.” 71. As examples of individual measures, the Rules name the striking out of an unjustified criminal conviction from the criminal records, the granting of a residence permit or the reopening of impugned domestic proceedings (on this last point see also Recommendation No. Rec(2000)2 of the Committee of Ministers to member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted on 19 January 2000 at the 694 th meeting of the Ministers ’ Deputies). As examples of general measures, the Rules mention legislative or regulatory amendments, changes of case-law or administrative practice, or publication of the Court ’ s judgment in the language of the respondent State and its dissemination to the authorities concerned. 72. Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies, adopted by the Committee of Ministers on 12 May 2004, insofar as relevant, reads as follows: The Convention as an integral part of the domestic legal order “7. A primary requirement for an effective remedy to exist is that the Convention rights be secured within the national legal system. In this context, it is a welcome development that the Convention has now become an integral part of the domestic legal orders of all states parties. This development has improved the availability of effective remedies. It is further assisted by the fact that courts and executive authorities increasingly respect the case-law of the Court in the application of domestic law, and are conscious of their obligation to abide by judgments of the Court in cases directly concerning their state (see Article 46 of the Convention). This tendency has been reinforced by the improvement, in accordance with Recommendation Rec(2000)2, of the possibilities of having competent domestic authorities re-examine or reopen certain proceedings which have been the basis of violations established by the Court. 8. The improvement of domestic remedies also requires that additional action be taken so that, when applying national law, national authorities may take into account the requirements of the Convention and particularly those resulting from judgments of the Court concerning their state. This notably means improving the publication and dissemination of the Court ’ s case-law (where necessary by translating it into the national language(s) of the state concerned) and the training, with regard to these requirements, of judges and other state officials. Thus, the present recommendation is also closely linked to the two other recommendations adopted by the Committee of Ministers in these areas. ” 73. Article 26 of, and the third paragraph of the Preamble to, the Vienna Convention of 23 May 1969 on the Law of Treaties, ratified by Lithuania on 15 January 1992, sets forth the principle of pacta sunt servanda : “ Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 8 AND 14, TOGETHER WITH ARTICLE 46 OF THE CONVENTION 74. Relying on Article 46 of the Convention, the applicants complained that Lithuania ’ s failure to repeal the legislative provision banning former KGB employees from working in certain spheres of the private sector, notwithstanding the Court ’ s judgments of 27 July 2004 and 7 April 2005, was not consistent with the Court ’ s findings of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants also referred to Article 13 of the Convention; however, the Court considers that that complaint is absorbed by the principal complaint. Articles 8, 14 and 46 of the Convention read as follows: Article 8 “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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... other status.” Article 46 “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... 4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. 5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.” A. Admissibility 1. The parties ’ submissions (a) The Government 75. In the Government ’ s submission, the present cases were fundamentally different from that of Mehemi v. France (no. 2) (no. 53470/99, § 43 in fine, ECHR 2003 ‑ IV), in that they presented no new issue that had not already been settled by the Court in the judgments of Sidabras and Džiautas and Rainys and Gasparavičius (both cited above). The Government thus strongly believed that the cases at hand concerned purely issues of execution of the Court ’ s judgments for the purposes of Article 46 of the Convention, and therefore should be declared incompatible ratione materiae within the meaning of Article 35 § 3. 76. The Government observed that individual as well as general measures concerning the execution of the above judgments had been implemented. In terms of individual measures, the Government had paid in due time the sums that the Court had awarded the applicants by way of just satisfaction. In terms of general measures, a number of specific laws had been amended, lifting the employment restrictions previously applicable in the private sector. Moreover, the Court ’ s judgments were directly applicable in Lithuania and the restrictions concerning employment possibilities in the private sector were thus considered unlawful. Additionally, as of 1 January 2009 the restrictions provided for in the KGB Act regarding the employment of former KGB agents were no longer in force, including in the public sector. The attention of the Committee of Ministers had also been drawn to the fact that both judgments of the Court had been translated, published and disseminated. 77. Taking the above into account, the Government were of the view that the Court had no jurisdiction over the Committee of Ministers ’ supervision of the execution of its judgments where no new issue had occurred in the same case after a judgment (the Government referred to Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009). The Government asserted that the applicants in the present cases had referred to the same factual circumstances and legal grounds, on account of which the Court had found a violation in its judgments of 27 July 2004 and 7 April 2005 and had awarded redress. The Government thus considered that within the context of the present applications, only the refusal to employ the applicants in those spheres of the private sector from which they were formally banned by the KGB Act and the subsequent failure by the domestic courts to defend their rights could be considered as a “new issue”. In the absence of such information substantiated by relevant evidence, the Court lacked jurisdiction over the matters, which were the subject of communication between the Lithuanian Government and the Committee of Ministers. 78. It was also the Government ’ s opinion that the judgments should be considered as duly executed, even without waiting for a formal legislative measure, by virtue of the direct applicability and supremacy of the Convention and the Court ’ s judgments over conflicting provisions of national law. In respect of the first and second applicants, this view had been expressis verbis confirmed by the Supreme Administrative Court in the decisions of 14 and 18 April 2008, in which it had held that the refusal of a job on the same discriminatory grounds as those condemned by the Court ’ s judgment of 27 July 2004 would mean a new violation of the Convention and thus be unlawful. The necessity to implement the Convention provisions effectively and to execute the Court ’ s judgments had also been confirmed by the Supreme Court when examining the third applicant ’ s case. 79. The Government thus maintained that, having regard to the translation, publication and dissemination of the Court ’ s judgments, the direct applicability and supremacy of the Convention and the Court ’ s case-law constituted a sufficient general measure with a view to preventing the occurrence of identical violations in the future. Steps to amend the KGB Act had been taken “without unjustified delay”. However, since those were legislative measures, they took more time than measures to be taken by other competent State authorities. (b) The applicants 80. The first and second applicants did not dispute the fact that Lithuania had paid the amounts awarded to them by the Court in respect of non-pecuniary damage. They were of the view, however, that pecuniary compensation constituted just one of the measures involved in executing the Court ’ s judgment and that the finding of a violation of Articles 8 and 14 called for restitutio in integrum. 81. Once the Court ’ s judgment in their case had become final, the Republic of Lithuania had been under an obligation to take all necessary measures, including making legislative amendments, to remove from the domestic law all the provisions that were in conflict with the Convention. To this end the two applicants noted that even though the Court had adopted the judgment on 27 July 2004, the KGB Act ’ s restrictions had remained in force until the very day of their expiry – 1 January 2009. They submitted that, when the State had good will, it was able to pass new laws or amend old ones within a few weeks. However, this was not so in their case. Moreover, the Government ’ s suggestion that their complaints were inadmissible ratione materiae because the execution procedure had been continuing ever since the Court ’ s judgment of 27 July 2004, was in contradiction with the principle ex iniuria ius non oritur, because it meant that the State could not rectify the violation found for a number of years and still be considered as acting lawfully or at least risk nothing. 82. As to the execution of the Court ’ s judgments through judicial practice, the first applicant underlined that, in accordance with Article 15 § 1 of the Law on Administrative Court Proceedings, the administrative courts decided cases in which one of the parties was the State or a public institution. For that reason, the first applicant lodged complaints with the administrative courts in 2000, asking to be reinstated in the civil service. Similarly, in 2006, after the Court ’ s judgment in his favour, he had again sued the State for damages. In contrast, should a private sector employer refuse to hire a person, he or she would have to address the courts of general jurisdiction, beginning with a district court and, if need be, going up to the Supreme Court as the court of cassation. However, the Supreme Court ’ s position, as regards the rights of former KGB employees under Articles 8 and 14 of the Convention, after the Court ’ s judgment of 27 July 2004, was plain: while the KGB Act was still in force, the question of reinstating the third applicant to his job could not be resolved favourably (see paragraph 58 above). The first applicant had no knowledge of any Supreme Court case-law to the opposite effect. That being so, and taking into account that the lower courts of general jurisdiction were bound to follow the Supreme Court ’ s case-law and guidelines, the first applicant ’ s right to respect for his private life would not be defended in court. 83. The third applicant submitted that the KGB Act had not been amended for political reasons. 2. The Court ’ s assessment 84. In the case of Verein gegen Tierfabriken Schweiz (VgT) (no. 2) (cited above), the Grand Chamber summed up as follows the criteria to be taken into account in cases of this kind: “61. The Court reiterates that findings of a violation in its judgments are essentially declaratory (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31; Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003 ‑ IX; and Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B). 62. The Committee of Ministers ’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003-IV, with references to Pailot v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; and Rando v. Italy, no. 38498/97, § 17, 15 February 2000) and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Lyons and Others, cited above, and also Hertel v. Switzerland (dec.), no. 3440/99, ECHR 2002 ‑ I). 63. Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it ‘ is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information ’. The Court must therefore ascertain whether the two applications brought before it by the applicant association relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, DR 80-A, and Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006).” 85. In the present case the Government have argued that the applicants ’ complaint about the continuous discrimination against them on the basis of the non-amended KGB Act related mainly to the issues already examined by the Court and was thus a matter for the Committee of Ministers under Article 46 § 2 of the Convention. The Court does not share that view and observes in this connection that under paragraph 2 of Article 32, “[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide”. As it has previously found, the powers assigned to the Committee of Ministers by Article 46 are not being encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 66 and 67; also see, most recently, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 33 and 34, 5 February 2015 ). 86. In order to ascertain whether these are fresh applications which can be distinguished in essence, within the meaning of the above-cited case-law, from the applicants ’ initial applications to the Court, it is appropriate to refer to the proceedings that followed the judgments of 27 July 2004 and 7 April 2005. Further to those judgments, the first and second applicants lodged applications with the administrative courts claiming damages for arbitrary discrimination. In the wake of those administrative court proceedings, the Supreme Administrative Court unequivocally acknowledged that the Convention and the Court ’ s case-law could be directly relied upon when defending human rights at the domestic level, and that in the hierarchy of legal norms the Convention took priority over national laws. 87. The third applicant also initiated new court proceedings, seeking reinstatement in his previous job at the private telecommunications company, Omnitel. Like the Supreme Administrative Court, the Supreme Court also recognised that the third applicant ’ s dismissal had been unlawful under the Convention. That being so, it unmistakably observed that because Article 2 of the KGB Act was still effective, the question of the third applicant ’ s reinstatement could not be resolved favourably (see paragraph 58 above). This, to the Court, constitutes a relevant new element, which the first applicant saw as manifestly contradicting the Court ’ s earlier judgments in the three applicants ’ cases. 88. The Court therefore considers that, in the light of the continuous existence of the KGB Act, the elements referred to above and the contradictory conclusions of the highest courts of administrative and general jurisdiction, there was, within the meaning of Article 35 (2) (b) of the Convention, “relevant new information” concerning the rights of former KGB employees, such as the three applicants, under the Convention capable of giving rise to a fresh violation of Article 14, taken in conjunction with Article 8. 89. It further observes that although the Committee of Ministers has begun its monitoring of the execution of the Court ’ s judgments in the applicants ’ cases, a final resolution has not yet been adopted in these cases (see Emre v. Switzerland (no. 2), no. 5056/10, § 42, 11 October 2011 ). 90. Accordingly, the Court finds that the three applicants ’ complaints are compatible ratione materiae with the provisions of the Convention and its Protocols. 91. The Court further considers that the complaints by the three applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are also not inadmissible on any other grounds. The complaints must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 92. The first applicant admitted that he had registered with the Šiauliai Employment Office, which had taken a number of steps to help him find a job. Even so, he had only been offered jobs, for example those of manager, which were not barred to him pursuant to the KGB Act. In other words, he was not offered the private sector jobs that had been barred to him before the Court ’ s judgment, because the prohibition on working in the sectors listed in Article 2 of the KGB Act remained effective. Accordingly, the Lithuanian institutions and in particular the Šiauliai Employment Office had not sought to implement the first applicant ’ s rights under Articles 8 and 14 of the Convention. Nor had their actions assisted in correcting the violation found by the Court. Lastly, he noted that he was a graduate of the Lithuanian Sports University and a qualified sports instructor, allowing him to work as a trainer in schools. However, such jobs at educational establishments were not and could not be offered to him until the very last day whilst the KGB Act-related restrictions remained in force. 93. The second applicant admitted that he had been included in the list of trainee lawyers as of 29 March 2006. However, this was only one of the private sector professions in which he could theoretically have worked in accordance with his education and qualifications, but which remained barred to him because the KGB Act had not been amended. 94. The third applicant submitted that the Lithuanian Supreme Court ’ s refusal to reinstate him in his job at Omnitel illustrated perfectly well that the restrictions contained in the KGB Act had applied to him even after the Court ’ s judgment in his favour, and thus had resulted in further discrimination. He disputed the Government ’ s argument that the provisions of the Lithuanian employment legislation were unfavourable to his reinstatement. Whilst acknowledging that States had the freedom to choose how to execute the Court ’ s judgments, the third applicant deemed it important to point out that that freedom did not allow them to suspend the application of the Convention while waiting for the relevant reform to be completed (he referred to Vermeire, cited above, § 26). Even though there were no objective reasons not to amend the KGB Act, the amendment had not been passed because of a lack of political will. The third applicant thus contended that his case was similar to another politically sensitive case, L. v. Lithuania (no. 27527/03, § 74, ECHR 2007 ‑ IV), in that the State had chosen to pay compensation instead of amending the legislation that was in breach of the Convention. The non-execution of the Court ’ s judgments in Lithuania had thus become systematic. (b) The Government 95. Concerning the personal situation of the first applicant, the Government maintained that there was no evidence that the State ’ s failure to amend the KGB Act in due time had continuously violated his rights. The Supreme Administrative Court has found that the first applicant had not provided any specific information explaining who had refused him employment on account of the restrictions still formally contained in the KGB Act, and when. Nor had he submitted any evidence to the effect that he would fail to receive particular offers because of his KGB past. Above all, the first applicant had not challenged before the domestic courts any alleged refusal, if there were any, arguing that he had been prohibited from applying for a specific job. The Government also considered that the private companies that had refused the first applicant a job did not fall within those areas of the private sector mentioned in Article 2 of the KGB Act. On this last point, the Government also suggested that the first applicant had merely speculated on the basis of the non-amendment of the KGB Act. In reality, he himself had often refused various job offers. Lastly, he had terminated his employment search with the Šiauliai Employment Office several days before the formal restrictions ceased to be valid. Thus it could be presumed that he had sought to keep his unemployed status instead of genuinely searching for a job. 96. With regard to the individual situation of the second applicant, he had not provided any evidence of having been discriminated against because of his KGB past. That fact had been confirmed by the Supreme Administrative Court. Furthermore, according to the Government, as of 29 March 2006 the second applicant had been included in the list of trainee lawyers, which was a precondition to becoming a lawyer, and faced no restrictions from the Lithuanian Bar Association. The Government maintained that on 14 May 2009 the second applicant had submitted the required two-year traineeship report, which had been confirmed by the Bar Association. He had then been put on the list of persons who were going to take the Bar exam. In addition, according to the information in the Government ’ s possession, during the relevant period he was receiving income from several private companies. 97. The Government also considered that the Supreme Court ’ s refusal to reinstate the third applicant in his earlier job at the telecommunications company, Omnitel, after the Court ’ s judgment did not amount to a new violation of his rights. A conclusion to the contrary would have the effect of depriving the respondent State of the margin of appreciation to which it was entitled when executing the Court ’ s judgments as it would constitute a straightforward requirement to take particular measures, which did not follow from the Court ’ s judgment in Rainys and Gasparavičius (cited above). The reopening of the domestic proceedings thus stood as a means of properly executing the Court ’ s judgment. 98. The Government also found it important to note that when deciding the third applicant ’ s case, the Supreme Court had emphasised the necessity of implementing the Convention provisions effectively, whilst noting that Lithuania had some discretion as regards the means of securing their proper implementation. For the Supreme Court, reopening the civil proceedings, in accordance with Article 366 § 1 of the Civil Code, was one such means. Above all, when modifying the reasoning of the lower courts, the Supreme Court had directly relied on the Court ’ s judgment of 7 April 2005 and acknowledged that the third applicant ’ s dismissal because of his status as a former KGB employee had been unlawful under the Convention (see paragraph 58 above). 99. For the Government, that acknowledgement of the unlawfulness of the dismissal directly relying on the Court ’ s judgment, together with the payment of just satisfaction by the State, constituted proper implementation of the Court ’ s judgment as regards the individual situation of the third applicant. The Government also pointed out that the Court ’ s judgment in no way implied an obligation to reinstate the third applicant in his previous job in the private telecommunications company. On the contrary, the Court had awarded just satisfaction to the third applicant not only for unlawful dismissal, but also in respect of future pecuniary loss. Furthermore, under the domestic law there were two alternative means to remedy unlawful dismissal. If, following unlawful dismissal, reinstatement was not possible, Article 297 of the Labour Code provided for compensation. Both alternatives were considered to be equal and could be availed of when defending the employment rights of an unlawfully dismissed employee. To that end, the courts examining the case, when choosing between the alternatives, were not bound by the demands of the parties to the case. Under Article 418 of the Code of the Civil Procedure, the courts had the power to choose, on their own initiative, to apply the alternative means to defend the rights of the employee and to pay compensation instead (see paragraph 68 above). The Supreme Court even addressed the issue of compensation for the Convention violation, but given that that compensation had already been paid by the State following the Court ’ s judgment, there was no basis for making a second award on the same grounds. 100. Lastly, the Government submitted that, as established by the court of first instance, at the time of the second set of proceedings the third applicant no longer possessed the qualifications necessary for the post of lawyer (see paragraph 49 above). 2. The Court ’ s assessment (a) As to the three applicants ’ complaint under Article 46 of the Convention 101. The Court recalls that the three applicants claimed that the State had not respected their rights, even after the Court had previously ruled in their favour, and had thus also violated Article 46 of the Convention. 102. As to the three applicants ’ reference to Article 46 of the Convention, the Court observes that in its previous judgments of Sidabras and Džiautas and Rainys and Gasparavičius (cited above), the Court did not provide for any individual or general measures to be taken by the Government in its operative part or its reasoning. Furthermore, the Court has previously held, both in the reasoning and in the operative part, that there had been a violation of a substantive provision of the Convention – in that instance Article 8 – taken together with Article 46, in a follow-up case after the Court had previously found a violation in the same applicant ’ s case (see Emre v. Switzerland (no. 2), cited above). As in the present case, the solution adopted in Emre (no. 2) was in line with the Court ’ s Grand Chamber judgment in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) (cited above), in so far as the Court found that it had jurisdiction to examine whether a decision delivered by a domestic court following the finding of a violation in Strasbourg satisfied the requirements of Article 46. However, it went further, since in the Verein gegen Tierfabriken Schweiz (VgT) case, the Grand Chamber did not formally find a violation of Article 46. The findings of the Court in Emre (no. 2) were made within the context of new proceedings at domestic level which directly confronted the national courts with interpreting and applying the Court ’ s previous judgment in the applicant ’ s case. The Court thus considered that “the most natural execution of its judgment, and that which would best correspond to the principle of restitutio in integrum, would have been to annul purely and simply, with immediate effect, the exclusion measure ordered against the applicant” (see Emre (no. 2), cited above, § 75). 103. The Court notes that in its judgment in the case of The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) (nos. 41561/07 and 20972/08, § 66, 18 October 2011), the Court observed that it is very doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application. Although the Court can examine whether measures taken by a respondent State in execution of one of its judgments are compatible with the substantive clauses of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 61 ‑ 68 and 78 ‑ 98), it has consistently ruled that it does not have jurisdiction to verify, by reference to Article 46 § 1, whether a Contracting Party has complied with the obligations imposed on it by one of the Court ’ s judgments (see Akdivar and Others v. Turkey (Article 50), 1 April 1998, § 44, Reports of Judgments and Decisions 1998 ‑ II; Mehemi (no. 2), cited above, § 43; Haase and Others v. Germany (dec.), no. 34499/04, 7 February 2008; Wasserman v. Russia (no. 2), no. 21071/05, § 31 in fine, 10 April 2008; Burdov v. Russia (no. 2), no. 33509/04, § 121, ECHR 2009; and Kafkaris v. Cyprus (dec.), no. 9644/09, § 74, 21 June 2011). So did the former Commission (see Times Newspapers Ltd. and Others v. the United Kingdom, no. 10243/83, Commission decision of 6 March 1985, Decisions and Reports (DR) 41, p. 123; Ruiz ‑ Mateos and Others v. Spain, no. 24469/94, Commission decision of 2 December 1994, DR 79 ‑ B, p. 141; and Oberschlick v. Austria, nos. 19255/92 and 21655/93, Commission decision of 16 May 1995, DR 81 ‑ A, p. 5). The new paragraphs 4 and 5, added to Article 46 by Article 16 of Protocol No. 14, seem to confirm that as well. 104. Taking account of the facts of the present case, the Court considers the above approach adopted in the case of The United Macedonian Organisation Ilinden – Pirin and Others (no. 2) to be particularly relevant as regards the three applicants ’ complaint under Article 46. The Court observes that this case is materially different from Emre v. Switzerland (no. 2), (cited above), for two main reasons. Firstly, in contrast to the situation in Emre (no. 2), it is clear in the present case that the Government executed the previous judgments of the Court from 2005, as regards the three applicants, inasmuch as it concerns payment of compensation for pecuniary and non-pecuniary damage awarded by the Court under Article 41. Secondly, although the abrogation of the KGB Act of 1999 must have constituted the most appropriate general measure for the Government to remedy the domestic legal situation forming the basis of the Court ’ s judgments of 2004 and 2005, it is for the Committee of Ministers under Article 46 of the Convention to supervise the execution of such general measures. 105. In view of these considerations, and noting that in any event the issues that might arise under Article 46 § 1 of the Convention are closely intertwined with those arising under Article 14, taken in conjunction with Article 8 of the Convention, the Court will examine the complaint solely by reference to the latter provisions (see, mutatis mutandis, The United Macedonian Organisation Ilinden – Pirin and Others (no. 2), cited above, § 67 ). (b) The legal principle as established in the previous case 106. In paragraphs 36–38 of the judgment in the third applicant ’ s case of 2005 (see Rainys and Gasparavičius, cited above), the Court stated the following: “ 36. As to the justification of this distinction, the Government ’ s main line of argument was that the application of the Act was well balanced in view of the legitimate interest to protect national security of the State, the impugned employment restrictions being imposed on persons such as the applicants by reason of their lack of loyalty to the State. However, the Court emphasises that the State-imposed restrictions on a person ’ s opportunity to find employment with a private company for reasons of lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to their employment in the public service (see Sidabras and Džiautas, §§ 57-58). Moreover, the very belated nature of the Act, imposing the impugned employment restrictions on the applicants a decade after the Lithuanian independence had been re-established and the applicants ’ KGB employment had been terminated, counts strongly in favour of a finding that the application of the Act vis-à-vis the applicants amounted to a discriminatory measure (loc. cit., § 60). The respondent Government have thus failed to disprove that the applicants ’ inability to pursue their former professions as, respectively, a lawyer in a private telecommunications company and barrister, and their continuing inability to find private-sector employment on the basis of their “former KGB officer” status under the Act, constitutes a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought after (see, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 51-62). 37. Consequently, there has been a violation of Article 14 of the Convention, taken in conjunction with Article 8. 38. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 8, it is not necessary also to consider whether there has been a violation of Article 8 taken alone (ibid., § 63).” (c) Application of these principles to the instant case (i) As to the first and second applicants 107. The Court notes that, as can be derived from the above-cited judgment in the third applicant ’ s first case (see Rainys and Gasparavičius, cited above, § 36), it is at the outset for the applicants claiming the discriminatory application of the KGB Act to plausibly demonstrate that a discriminatory act has occurred, either in the form of dismissal from a job previously held or by them being prevented from taking up a job on the basis of a refusal by a prospective employer in the private sector. If applicants succeed in plausibly demonstrating direct consequences of the Act for them, it is then for the Government to “disprove that the applicants ’ inability to pursue their former professions ... and their continuing inability to find private-sector employment on the basis of their “former KGB officer” status under the Act, constitutes a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought after” (see ibid, § 36). 108. On this basis, the Court will proceed to determine whether the first and the second applicants have plausibly demonstrated that the KGB Act has again had direct consequences for them by preventing them from obtaining private sector employment, so as to reverse the burden of proof and to require the Government to disprove the existence of a discriminatory measure in violation of Article 14, taken in conjunction with Article 8. 109. Turning to the facts of the first applicant ’ s case the Court recalls that as of 1999 he received assistance from the Šiauliai Employment Office to re-train and seek other employment. The Court cannot overlook the fact that the first document issued by the Šiauliai Employment Office mentioned that the first applicant “had not been employed because of applicable restrictions” (see paragraph 17 above). That being so, the reasons for his unemployment were explained in more detail in the Šiauliai Employment Office ’ s 28 December 2007 written response to the Supreme Administrative Court. On the basis of that information the Supreme Administrative Court concluded that there was no proof that, after the Court ’ s judgment of 27 July 2004, the first applicant had in fact been prevented from obtaining a private sector job because of the restrictions contained in the KGB Act. Furthermore, the first applicant had not provided any particular information as to who had refused to employ him as a result of those restrictions, or when (see paragraphs 23 and 24 above). Having regard to the documents in its possession, the Court perceives nothing to contradict the conclusion of the domestic court to the effect that after August 2004, that is after the Court ’ s judgment in his case, the first applicant was unemployed for justified reasons, specifically because he lacked the necessary qualifications (see paragraphs 17 and 23 above). At this juncture it is also important to note that the applicant himself had turned down a number of job offers, thus further compounding his situation (see paragraph 25 above). 110. With regard to the second applicant, he has acknowledged having been a trainee lawyer as of 2006. The Court therefore considers that the second applicant has failed to substantiate the claim that, after the judgment of 27 July 2004 in Sidabras and Džiautas case, he continued to be discriminated against on account of his status. Moreover, he himself acknowledged that he had never attempted to obtain other private sector jobs (see paragraph 37 above). 111. In the light of the foregoing, the Court finds that the first and the second applicants have not plausibly demonstrated before the Court that they have been discriminated against after the Court ’ s judgments in their case. 112. Accordingly, there has been no violation of Article 14 of the Convention, taken in conjunction with Article 8, with regard to these two applicants. (ii) As to the third applicant 113. Turning to the judgment of the Supreme Court of 20 June 2008 in the third applicant ’ s case, the Court notes that the court of cassation acknowledged that the third applicant ’ s dismissal was unlawful under the Convention (see paragraph 58 above). The third applicant considered that the most natural execution of the Court ’ s judgment in his case, and that which would best correspond to the principle of restitutio in integrum, would have been simply to reinstate him in his former job at Omnitel. 114. The Court observes that it is not for it to decide whether the provisions of the Law on the Employment Contract or those of the Labour Code were applicable to the third applicant ’ s case and whether, therefore, the Lithuanian courts erred in not reinstating him in his former job at Omnitel. However, the Court does not lose sight of the fact that the Supreme Court limited its analysis to the question of the place of the Convention and the Court ’ s judgments in Lithuanian law. Although the Government and Omnitel have insisted that the reasons for not reinstating the third applicant in his former job at the telecommunications company were economic, technological and organisational (see paragraphs 55 and 99 above), the Supreme Court not only left those other reasons unexamined, but even declared that the other arguments made by the parties in their appeals on points of law were legally irrelevant (see paragraph 60 above). Moreover, the Supreme Court stated explicitly that “while the KGB Act ... is still in force, the question of reinstating the third applicant to his job may not be resolved favourably” (see paragraph 58 above). 115. In view of the foregoing, the Court reiterates its findings in the third applicant ’ s previous case that the application of Article 2 of the KGB Act to his situation, which excluded him from seeking private sector employment on the basis of his “former KGB officer” status, constituted a disproportionate measure in violation of Article 14, taken in conjunction with Article 8 (see Rainys and Gasparavičius, cited above, §§ 36 and 37). 116. In the light of the aforementioned statement by the Supreme Court in the new domestic proceedings, examined in the present case, the Court finds that the Government have not convincingly demonstrated that the Supreme Court ’ s reference to the KGB Act was not the decisive factor forming the legal basis on which the third applicant ’ s claim for reinstatement was rejected. Accordingly, there has been a violation of Article 14, taken in conjunction with Article 8, in this case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “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.” A. Damage 118. The third applicant claimed 194,854 Lithuanian litai ( LTL; approximately 56,479 euros (EUR) ) in respect of pecuniary damage suffered as a result of not receiving his salary. The amount was calculated taking the number of months from his dismissal on 23 February 2000 to 23 October 2008, 104 months in total. He submitted a letter from Omnitel indicating that on the date on which his contract had been terminated, his salary had been LTL 4,040. The third applicant also claimed LTL 50,000 (approximately EUR 14,493) in respect of non-pecuniary damage, which he had suffered as a result of the Lithuanian courts ’ failure to reinstate him to Omnitel. 119. The Government disputed the claim. They stated that the just satisfaction awarded to the third applicant by the Court ’ s judgment of 7 April 2005 had covered future pecuniary losses as well. They also noted that the third applicant was employed and had received income during the relevant period. Accordingly, his claims for pecuniary damage were groundless. Lastly, the Government submitted that there was no link between the non-pecuniary damage claimed and the violation of the third applicant ’ s rights under the Convention. 120. The Court reiterates that it has found a violation of Article 14, taken in conjunction with Article 8 of the Convention. There is thus a clear causal link between the alleged pecuniary damage and the violation of the Convention it has found. However, having regard to paragraph 47 of the Rainys and Gasparavičius judgment, the Court observes that it has already awarded the third applicant just satisfaction in respect of both past and future pecuniary loss. That being so, the Court dismisses the third applicant ’ s claims under this head. However, the third applicant is entitled to claim that he has, again, suffered non-pecuniary damage in the new proceedings for reinstatement. Consequently, given the particular circumstances of the case, the Court, on an equitable basis, awards the third applicant EUR 6,000 under this head. B. Costs and expenses 121. The third applicant claimed LTL 17,000 (approximately EUR 4,900) for legal expenses incurred before the Court. 122. The Government argued that the above amount was excessive. 123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court. C. Default interest 124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been no violation of Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private life) of the Convention, on account of the first two applicants, not being able to obtain employment in the private sector, and, that there had been a violation of Article 14, taken in conjunction with Article 8, on account of the third applicant, not being able to obtain employment in the private sector. The Court found in particular that neither the first nor the second applicant had plausibly demonstrated that they had been discriminated against after its judgments in their case (see above). The first applicant had not provided any particular information as to who had refused to employ him as a result of restrictions under the relevant legislation, or when. Nor did the Court see anything to contradict the domestic courts’ conclusion in his case that he had remained unemployed because he lacked the necessary qualifications. As concerned the second applicant, he had himself acknowledged that he was a trainee lawyer as of 2006 and that he had never attempted to obtain other private sector jobs. However, as concerned the third applicant, the Court was not convinced that the Lithuanian Government had demonstrated that the domestic courts’ explicit reference to the KGB Act – namely, the fact that the third applicant’s reinstatement to his job could not be resolved favourably while the KGB Act was still in force – had not been the decisive factor forming the legal basis on which his claim for reinstatement in the telecommunications company had been rejected.