Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE in the NORP SSR of GPE . Since DATE he has been living in GPE , GPE . It appears that he did not acquire any nationality following the break - up of the GPE .

On DATE the police stopped the applicant for an identity check and discovered that he had no identity documents . On DATE a judge of ORG of GPE found him guilty of an administrative offence under LAW ( breach of residence regulations in GPE ) , fined him MONEY ( RUB ) and ordered his expulsion from GPE . The court ruled that the applicant should be detained in the detention centre for aliens until his expulsion .

Officers of ORG ( ORG ) interviewed and fingerprinted the applicant , who had no passport or other identity documents . He told them that he had been born in GPE and , prior to his arrival in GPE , had had a registered place of residence in LOC .

On DATE the director of the detention centre for aliens asked ORG to issue travel documents ( return certificates ) to CARDINAL individuals , including the applicant , who were described as being NORP nationals . No reply was received .

Further similar requests sent on DATE , DATE , DATE and CARDINAL DATE did not elicit any reply from ORG either .

On DATE counsel for the applicant sent an inquiry to ORG in GPE , seeking to find out whether or not the applicant had NORP nationality and whether he could be removed to GPE . No reply was received .

On DATE counsel asked the ORG to inform him what measures had been taken with a view to expelling the applicant from GPE , whether or not his identity had been established and why the applicant had already spent DATE in detention . In reply , the ORG refused to give any information , citing the law on the protection of personal data .

On DATE counsel applied to ORG for an order discontinuing the enforcement of the expulsion order of DATE . He pointed out that the enforcement was impossible since the NORP authorities would not accept the applicant , who was not a national of that ORG .

On DATE a judge of ORG rejected the application , without hearing the parties or the applicant . According to the judge , a failure to take measures with a view to expelling the applicant was not a ground for discontinuing the enforcement of the expulsion order . Counsel submitted an appeal , in which he complained in particular about the absence of a periodic judicial review of the applicant ’s detention in breach of LAW and about the State authorities’ failure to show special diligence in the conduct of the expulsion proceedings , contrary to the requirements of LAW ( f ) of the LAW . On DATE a judge of GPE rejected the appeal in a summary fashion .

Counsel also attempted to challenge the applicant ’s detention as unlawful . By decision of CARDINAL DATE , ORG of GPE disallowed the complaint , finding that the decision of DATE constituted a sufficient lawful basis for the ensuing detention . It noted in particular that the applicant would remain in custody “ until his expulsion from GPE ” . On DATE GPE upheld ORG decision .

NORP By letter of CARDINAL DATE , the consular department of ORG informed the ORG that the applicant was not a national of GPE and could not therefore be issued with a travel document . On DATE ORG of GPE sent a further letter to the ORG , stating that the applicant was not an NORP national .

On DATE the applicant was released on the basis of the expiry of the DATE time - limit for enforcement of the administrative - expulsion decision .

The detention centre for aliens ( Центр для содержания иностранных граждан ) is located in GPE in GPE and operated at the material time under the authority of the ORG .

The centre , an QUANTITY building designed to hold CARDINAL inmates , actually accommodated CARDINAL people at any one time and the number rose to CARDINAL in the summertime and during special raids .

The applicant was initially held in cells CARDINAL and CARDINAL . Each cell measured CARDINAL QUANTITY and housed CARDINAL or CARDINAL people . In DATE of his detention the applicant was held in cell CARDINAL , an QUANTITY cell which he shared with CARDINAL and occasionally CARDINAL other people .

There was no sink or access to drinking water from within the cells ; there was CARDINAL toilet and CARDINAL shower per floor which were used by DATE inmates .

Up until DATE the applicant was allowed CARDINAL minutes’ outdoor exercise once every CARDINAL or three weeks in a tiny yard .

The facility did not offer any meaningful activities : no television , radio , newspapers or magazines were available .


CASE OF SIDABRAS AND OTHERS v. LITHUANIA

Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Lech Garlicki;Nebojša Vučinić;Robert Spano

The first applicant , Mr PERSON , was born in DATE and lives in GPE .

He graduated from ORG ( currently ORG ) , qualifying as a sports instructor .

DATE he was employed by the NORP branch of ORG ( the ORG ) . After GPE declared independence in DATE , he found employment as a tax inspector .

On DATE the NORP authorities concluded that the first applicant was subject to the restrictions of LAW ( see paragraph CARDINAL below ) . As a result , on DATE he was dismissed by the tax authorities .

The first applicant brought an administrative action against the security intelligence authorities , claiming that his dismissal under LAW , and the ensuing inability to find employment , were unlawful . The domestic courts dismissed his claims ( see GPE and PERSON v. GPE , nos . CARDINAL/CARDINAL and CARDINAL , § § DATE , ECHR CARDINALVIII ) .

On DATE the first applicant submitted an application to the ORG , alleging that he had lost his job and that his employment prospects had been restricted as a result of the application of LAW , in breach of ORG CARDINAL and CARDINAL of the Convention .

By a judgment of DATE in the case of GPE and PERSON ( cited above ) , the ORG found a violation of LAW , taken in conjunction with LAW . It concluded that the ban on the first applicant seeking employment in various branches of the private sector , in application of LAW , constituted a disproportionate measure , despite the legitimacy of the aims pursued ( see § CARDINAL of the judgment ) . The ORG ordered the ORG to pay the first applicant MONEY ( ORG ) as compensation for pecuniary and non - pecuniary damage and costs .

By a letter of CARDINAL DATE the ORG informed ORG that , as no request had been made under LAW above - mentioned cases to be referred to ORG , the judgment of DATE had become final on CARDINAL October CARDINAL , in accordance with LAW .

In DATE ORG discussed the question of whether the ORG ’s judgments in the cases of GPE and GPE v. GPE ( cited above ) and PERSON and PERSON v. GPE ( nos . CARDINAL and FAC , DATE ) had been executed . As regards individual measures , the Government informed ORG that the sum awarded to the first applicant had been paid to him . As regards general measures , ORG was preparing amendments to LAW , which would be adopted in the near future . Moreover , in order to prevent similar violations of the LAW , the NORP courts and other institutions had been informed about the ORG ’s judgment and provided with a translation ( see also paragraphs CARDINAL - CARDINAL below ) .

On DATE the first applicant started domestic court proceedings against ORG , seeking CARDINAL NORP litai ( LTL ) in pecuniary damages , which he counted as DATE of his tax inspector ’s salary , and LTL CARDINAL in non - pecuniary damages , which he claimed to have suffered because of the continuing violation of his right to respect for his private life under Articles CARDINAL and CARDINAL of the LAW . The first applicant noted that since DATE he had been unemployed and registered at ORG ( PERSON darbo birža ) , a ORG institution that provides assistance for job seekers . He argued that , even though he had not been in the service of the ORG for DATE , owing to the restrictions imposed by LAW he had been unable to gain employment in certain branches of the private sector as of DATE .

The first applicant also maintained that GPE had disregarded its obligations under international treaties and the LAW . Without referring to specific judgments of the ORG , he considered that the common principles developed by the ORG required that GPE execute the ORG ’s judgment in his case without undue delay . It was his view that the ORG ’s judgment in his case obliged GPE to amend LAW . However , ORG had ignored the ORG ’s judgment and had been stalling any amendment of LAW , which ORG had found to be incompatible with the Convention . He concluded that since DATE , when the ORG ’s judgment in his case had become final , GPE had continued to violate his employment rights .

On DATE at the request of the first applicant , ORG issued him with a document to the effect that he had been registered as a job seeker since DATE , and that DATE and DATE he had been turned down a number of times for jobs proposed to him , “ for justified reasons ” . As it transpires from other documents presented to the ORG , those justified reasons included : a lack of professional qualification or work experience for the posts of business manager at a factory producing television sets and at other local companies ; another candidate had been chosen for the post of supervisor at a waste management facility ; and a lack of LANGUAGE language skills for a job as a hotel manager .

Without further explanation , it was also briefly noted in the document of DATE that the first applicant “ had not been employed because of applicable restrictions ( he could not take up jobs which required him to manage people , pedagogical jobs or work in the security sector ) ( bedarbis neįdarbintas dėl taikomų apribojimų : negali dirbti vadovaujantį , pedagoginį darbą , apsaugoje ) ” .

On DATE ORG dismissed the first applicant ’s claims as unsubstantiated . It observed that ORG had awarded him compensation for the pecuniary and non - pecuniary damage he had sustained before the ORG had adopted its judgment on DATE . The first - instance court then turned to the first applicant ’s claim about the continued discrimination against him after the ORG ’s judgment . On this point , it observed that ORG document of CARDINAL DATE stated that he “ had not been employed because of applicable restrictions ” . Without elaborating any further on the facts , ORG merely observed that that particular document and other materials of the case file did not prove that the first applicant ’s right to choose a particular private sector job had been infringed because LAW had not been amended after the ORG ’s judgment . Accordingly , his claim for damages for the period after the ORG ’s judgment was dismissed .

On DATE the first applicant lodged an appeal with ORG . In addition to his previous arguments he further maintained that after the re - establishment of GPE ’s independence , he had fully cooperated with the NORP authorities and helped to disclose the identities of former ORG officers before they infiltrated the NORP authorities . However , notwithstanding his loyalty to the independent GPE and the ORG ’s judgment in his favour , he had been banned from legal , pedagogical or other jobs because LAW had remained in force . He had been unemployed since DATE and thus could not take care of his family .

As it appears from his appeal on points of law , the first applicant did not mention any particular instance when he had been refused a job because of his status . Yet he reiterated his point of view that the principles of the ORG required that GPE execute the ORG ’s judgments without undue delay and within the shortest time possible .

On DATE ORG upheld the lower court ’s decision . It observed that the LAW formed an integral part of the NORP legal system and that individuals could directly rely on its provisions before the national courts . Moreover , in the event of a conflict between the legal norms of the ORG and national laws , the LAW was to be given priority . ORG agreed with the lower court ’s reasoning that the first applicant ’s request for compensation for pecuniary and non - pecuniary damage sustained before DATE ( the date of ORG judgment in his case ) had to be dismissed because an award had already been made by the ORG and the applicant had been paid the sum of ORG CARDINAL,CARDINAL .

Regarding the first applicant ’s claim in respect of the damage allegedly suffered since then , on the basis of the ORG ’s judgment in PERSON and ORG v. GPE ( [ ORG ] ORG . FAC and CARDINAL , § CARDINAL , ECHR CARDINALVIII ) , ORG noted that GPE undertook to take general and , if appropriate , individual measures to be adopted in their domestic legal order to put an end to the violation found by the ORG and to redress so far as possible its effects . The GPE were free to choose how to correct the breach of individual applicants’ Convention rights , provided that the means chosen were compatible with the conclusions set out in the ORG ’s judgment . ORG in integrum was an important aspect of remedying the violation .

That being so , even though the legislator had an obligation to ensure legal certainty and to reconcile domestic law with the norms of the ORG , legislative amendment was not the only way to implement the ORG ’s judgment . The fact that LAW had not been amended had not in itself breached the first applicant ’s rights . A person ’s rights could also be secured by administrative decisions and domestic court practices . Both LAW and ORG judgment were in force in GPE . For ORG , in the event of a conflict between them , priority was to be given to the ORG ’s judgment . Consequently , even though LAW was still in force , a refusal to employ the first applicant in the private sector based on the restrictions contained in the KGB Act would be unlawful . Accordingly , the protection of a person ’s rights through the direct application of the ORG ’s judgment and before any legislative amendments had been adopted was to be considered proper execution of the ORG ’s judgment .

Regarding the facts of the case , ORG noted that the first applicant had attempted to obtain employment in the private sector . It observed that on DATE ORG had issued him with a document certifying that he had been registered as a job seeker since DATE and had not been employed because of the restrictions applied to him ( see paragraph CARDINAL above ) . The appellate court noted that in response to its request to explain the reasons for the first applicant ’s unemployment in more detail , on DATE ORG had provided the appellate court with another document stating that on DATE an individual plan for the first applicant ’s employment had been prepared with a view to employing him as a lawyer ( in - house lawyer ; juriskonsultas ) , because he had DATE work experience in different companies and institutions in the city of ORG . From DATE to DATE , CARDINAL posts for in - house lawyers had been created in ORG , for which a university degree in law was required and the salary was just higher than minimal salary . The advertisements for those posts had been shown to the first applicant , but he had not been given any of those jobs because the employers considered that he lacked the relevant qualifications . ORG could therefore no longer offer the first applicant other in - house lawyer posts . To increase his chances of finding a job , at DATE the first applicant had attended computer literacy courses and courses for professional training in the field of administrative work . In DATE a new individual plan had been compiled together with the first applicant , so that , because he so wished , he could obtain the job of business manager ( komercijos vadybininkas ) . ORG then named CARDINAL companies which refused the first applicant the job of business manager , administrator and sales manager because other candidates had been chosen or because he lacked knowledge of the LANGUAGE language .

ORG observed that those CARDINAL documents were contradictory . The court deemed it proper to rely on the report of DATE as it was more recent and , in the court ’s opinion , more comprehensive and explanatory . It concluded that the restrictions which LAW imposed on a person ’s ability to find employment in certain areas of the private sector had not been applied to the first applicant . The existence of LAW , as such , had not violated his rights and did not entitle him to compensation . ORG determined that there was no proof that , after the ORG ’s judgment of CARDINAL July CARDINAL , the first applicant had been prevented from obtaining a private sector job because of the restrictions related to LAW . Furthermore , he had not provided any particular information as to who had refused to employ him on the basis of those restrictions and when . It followed that the first applicant had not managed to secure a job because of the local labour - market situation . Moreover , there was no information that he had attempted to find a job in another manner , that is to say not only relying on the assistance of ORG , but had been refused a job because of the legislative restrictions . To give rise to a violation of the LAW , a breach of a person ’s rights had to be real , and not hypothetical . Given that there was no proof that after the ORG ’s judgment of DATE the first applicant could not obtain a job because the KGB Act remained unchanged , and having concluded that his right to work in the private sector could no longer be restricted because of the direct applicability of the LAW , the first applicant ’s claim for damages had to be dismissed .

On DATE , DATE after ORG final decision in his case , ORG suggested that the first applicant contact CARDINAL specific private companies for a post as a business manager . On DATE the first applicant came back to ORG and stated that he had not taken the business manager ’s job in CARDINAL of those companies because he did not like the conditions offered . He planned to take part in the interview for the business manager ’s job in the other company .

DATE the first applicant was refused positions of business manager , insurance consultant and other jobs a number of times because he lacked foreign language skills , qualifications , or the relevant work experience . As it transpires from the documents in the ORG ’s possession , he turned other jobs down simply because he deemed that the salary offered was too low or the work place too far away .

On DATE the first applicant was appointed as a carer for his mother ( paskirtas motinos rūpintoju ) . ORG therefore discontinued its assistance to him .

The second applicant , Mr PERSON , was born in DATE and lives in GPE .

On an unspecified date in DATE , he graduated from ORG as a lawyer . From CARDINAL DATE he worked as a prosecutor .

On DATE the NORP authorities concluded that , from DATE , the second applicant had been an employee of the NORP branch of the ORG and that he was therefore subject to the restrictions provided for by LAW . As a result , on DATE he was dismissed from his job as prosecutor .

The second applicant brought an administrative action against the authorities , claiming that his dismissal under LAW , which made it impossible for him to find employment , was unlawful . The domestic courts dismissed his claims ( see GPE and PERSON , cited above , § § DATE ) .

On DATE the second applicant lodged an application with the ORG . Like the first applicant , he alleged that Articles CARDINAL and CARDINAL of the Convention had been violated .

By a judgment of CARDINAL July CARDINAL in GPE and GPE v. GPE ( cited above ) , the ORG found a violation of LAW taken in conjunction with LAW and awarded the second applicant ORG CARDINAL in respect of pecuniary and non - pecuniary damage and costs .

On DATE the second applicant wrote to the Chairman of ORG of ORG , the Prime Minister and the Minister of ORG to enquire whether the ORG intended to amend LAW and , if so , when . At the same time , he acknowledged that the NORP authorities had already paid him a sum of money awarded to him by the ORG .

On DATE the Government Agent before the ORG informed the second applicant that ORG was working on amendments to LAW .

On DATE the Chairman of ORG of the LAW informed the second applicant that the Seimas had set up a working group that was also drafting legislative amendments .

According to the ORG , as of CARDINAL DATE the second applicant was registered in the list of trainee lawyers ( advokato padėjėjas ) , which is a precondition to becoming a lawyer . The Government also noted that the second applicant had submitted his traineeship report on DATE and was going to take the NORP exam .

On DATE the second applicant sued GPE for non - pecuniary damage . He claimed to have lost LTL CARDINAL,CARDINAL as a result of the ORG ’s failure , since DATE ( the date of the ORG ’s judgment in his case ) , to amend LAW . This in turn had restricted his prospects of finding employment in certain private sector areas . He argued that the common principles governing the execution of the ORG ’s judgments required the ORG to execute the judgment without undue delay .

On DATE ORG dismissed the second applicant ’s claim . It noted that the judgment in the NORP and PERSON case did not oblige the ORG to amend LAW within a specific time - frame and that the Seimas was in the process of discussing the relevant legislative amendments . During the court hearing the second applicant submitted that he had contacted an insurance company and a commercial bank in order to check what the reaction of potential employers would be . He maintained that those employers had replied that they would be unable to employ him because to do so would breach LAW . The first - instance court , however , noted that the second applicant had not provided any evidence to prove that he had actually applied for and been refused any particular job in the private sector . Accordingly , the court had no basis on which to hold that the second applicant had in reality addressed those CARDINAL employers and that they had refused to hire him .

The second applicant appealed . He pointed out in particular that he had not attempted to obtain employment in the private sector so as not to harm the employers , who would have faced administrative liability if they had employed him . That was the reason why he had no proof of having actually attempted to obtain a job barred to him by LAW .

On DATE ORG dismissed the second applicant ’s appeal . Its reasoning was similar to that of its decision of DATE in the first applicant ’s case ( see paragraphs CARDINAL above ) . It observed that the second applicant had based his claims for damages on the alleged non - execution of the ORG ’s judgment of CARDINAL July CARDINAL . However , referring to the cases of PERSON and ORG ( cited above , § CARDINAL ) and GPE v. GPE ( DATE , § CARDINAL , Series A no . CARDINAL-C ) , it observed that under LAW were free to choose the appropriate individual and general measures to discharge their legal obligation to execute the ORG ’s decisions , albeit monitored by ORG . Moreover , given the abstract nature of the Convention norms , the domestic courts should follow ORG jurisprudence in order better to comprehend their content .

As to the facts of the second applicant ’s case , ORG observed that , because the ORG ’s judgment in GPE and PERSON prevailed over LAW , the restrictions on working in certain private sector areas could no longer be imposed on the second applicant . Thus , even though LAW had not been amended , a refusal to employ him on the basis of the restrictions provided for in LAW would be in violation of the LAW and consequently unlawful . It was also the court ’s view that protecting a person ’s rights by direct application of the ORG ’s judgments rather than by legislative amendments was an appropriate way to execute those judgments . It followed that , because of the direct applicability of the ORG and the ORG ’s judgments , the ORG had not failed to act , the latter being a precondition for the ORG ’s civil liability .

As to the second applicant , he had failed to prove that , after the ORG ’s judgment of CARDINAL July CARDINAL , he had attempted to obtain employment in the private sector and had been refused owing to the restrictions of LAW . ORG stressed that “ the mere existence of contradictions and ambiguities in the legal system did not in itself provide grounds for a violation of a person ’s rights and did not harm that person ” . Similarly , a mere hypothetical violation and a person ’s idea that his rights had been breached , without any tangible facts , were not sufficient . ORG therefore dismissed the second applicant ’s claim in respect of non - pecuniary damage .

The third applicant , Mr ORG , was born in DATE and lives in GPE .

DATE he was an employee of the NORP branch of the ORG . Thereafter he found employment as a lawyer in a private telecommunications company , Omnitel .

On DATE ORG informed GPE that the third applicant had been a ORG officer and was therefore subject to the restrictions provided for by LAW . As a result , on DATE Omnitel dismissed the third applicant from his job .

After unsuccessful litigation before the NORP courts for reinstatement in his job and for unpaid salary ( see ORG , cited above , § § DATE ) , the third applicant lodged an application with the ORG , alleging that he had lost his job and that his employment prospects had been restricted as a result of the application to him of LAW , in breach of LAW and CARDINAL of the Convention .

In its judgment in the case of ORG ( cited above , § DATE ) the ORG held that the third applicant ’s inability to pursue his former profession as a lawyer in a private telecommunications company , and his continuing inability to find private - sector employment because of his “ former permanent ORG employee ” status under LAW , constituted a disproportionate and thus discriminatory measure , despite the legitimacy of the aims pursued . ORG concluded that there had been a violation of Article CARDINAL taken in conjunction with Article CARDINAL of the Convention .

By a letter of DATE , the ORG informed ORG that , as no request had been made under LAW above - mentioned cases to be referred to ORG , the judgment of DATE had become final on DATE , in accordance with LAW .

On DATE the third applicant requested that ORG reopen the proceedings in his earlier case for unlawful actions and reinstatement in his job at Omnitel , on the basis of LAW CARDINAL ( CARDINAL ) of ORG ( see paragraph CARDINAL below ) .

On DATE ORG noted that the proceedings in the domestic courts related to the dismissal of the third applicant from his position as a lawyer with a telecommunications company . It observed that the ORG ’s judgment gave reason to doubt the lawfulness of those domestic decisions . It therefore decided to reopen the proceedings which the third applicant had previously instituted against ORG and his previous employer , the private telecommunications company , GPE .

For reasons of jurisdiction , the case was subsequently remitted to ORG , a court of general jurisdiction , for a fresh examination .

DATE . On DATE ORG acknowledged that the third applicant had been dismissed from his previous job at GPE unlawfully . As to the question of his reinstatement , the court relied on LAW ( see paragraph CARDINAL below ) and noted that DATE had elapsed since the telecommunications company had dismissed the third applicant from his job . During that time the third applicant had worked in companies specialising in other fields , such as railways and television . Moreover , the activities of the telecommunications company had also evolved . In the court ’s view , because he lacked appropriate qualifications and foreign language skills , after such a long time the third applicant would no longer be competent to work as a lawyer in that company . The court also noted that at that time the third applicant was working in another company , without specifying what that company was , and therefore had a source of income . ORG also noted the continuing conflict between the third applicant and the company , which could be another reason not to reinstate him to his former job at GPE . Lastly , the court observed that LAW was still in force . In the court ’s view , should the third applicant be reinstated , the question of his dismissal could arise de novo , or his employer would face the risk of administrative penalties . In the light of those circumstances , the court dismissed the third applicant ’s claim for reinstatement .

The court then turned to the issue of compensation for lost earnings for the period of DATE , indicated by the third applicant , for which he requested the sum of LTL CARDINAL . However , it was to be noted that the ORG had already awarded him more than LTL CARDINAL,CARDINAL for both past and future pecuniary loss . Moreover , after his dismissal from GPE , the third applicant had worked in different jobs and had received more than LTL CARDINAL,CARDINAL in salary . Under NORP law , an employee could be awarded CARDINAL years’ unpaid salary . In the third applicant ’s case the salary in GPE would amount to ORG ( ORG DATE for DATE ) . Accordingly , the CARDINAL sums he had already received ( LTL CARDINAL,CARDINAL and LTL CARDINAL ) amounted to more than the award requested . Lastly , the third applicant had acknowledged that since his dismissal from GPE , he had continued to receive a pension from another ORG for his work in the ORG , ranging from ORG CARDINAL a month . It followed that the claim for pecuniary damage had to be dismissed .

Both the third applicant and GPE appealed . At the hearing , the third applicant asked to be paid LTL CARDINAL for lost earnings as compensation for the fact that he had still not been reinstated with Omnitel .

On DATE ORG rejected both appeals . It upheld the lower court ’s conclusion that the third applicant had been dismissed from his previous job unlawfully . Moreover , the circumstances mentioned in LAW existed . Accordingly , the third applicant could not be reinstated in his former job with Omnitel . The court added that “ the laws that provide for the prohibition on former [ GPE ] ORG employees from working in the telecommunications sector are still in force , so that if the [ third ] applicant were reinstated in his previous job , certain problems might arise ” . Additionally , the applicant was working in another company and receiving a pension for his previous work with the ORG . He therefore had a source of income . ORG also endorsed the lower court ’s view that the third applicant had been compensated by ORG for the pecuniary damage he had suffered as a consequence of his unlawful dismissal . The sum he now asked for – LTL DATE was lower than the awards of LTL CARDINAL and CARDINAL he had already received .

The third applicant lodged an appeal on points of law , reiterating his claim for reinstatement and for compensation for lost earnings . He argued that LAW was an imperative legal norm and meant that once the court found that an employee had been dismissed unlawfully , that employee was to be reinstated in his or her previous job . It followed that the argument of ORG that “ if the [ third ] applicant were reinstated to his previous job certain problems might arise ” was arbitrary .

DATE Omnitel argued that in DATE it had dismissed the third applicant from his job merely following the letter of LAW . LAW provided that an employer could be fined ORG CARDINAL should he not comply with LAW . This was all the more likely to happen since ORG had recognised LAW as constitutional in its ruling of DATE , that is before the third applicant was dismissed . Even though the ORG had found a violation in the third applicant ’s case , LAW was still in force , and therefore the third applicant ’s reinstatement was barred . Furthermore , in the judgment of DATE the ORG had not ordered GPE to amend LAW . Nor had the ORG ordered the NORP courts to have the third applicant reinstated in his previous job . In his written reply to this last argument , the third applicant observed that GPE , by not appealing against the ORG ’s judgment to ORG , had shown its agreement with the interpretation and application of FAC in the Rainys and Gasparavičius judgment . He therefore insisted that the ORG ’s judgment was sufficient legal basis for him to be reinstated in his former job at the private telecommunications company , Omnitel , notwithstanding the fact that LAW had not been amended .

Lastly , PERSON maintained that the lower courts had been correct in referring to other circumstances why the third applicant could not be reinstated on the basis of LAW of the Law on ORG , namely , for economic , technological and organisational reasons , and the fact that it could lead to unfavourable conditions for him ( see paragraph DATE above ) .

On DATE ORG held :

“ LAW is an international agreement , ratified by the LAW . It is therefore an integral part of the legal system of GPE ... ORG was established to guarantee the observance of the rights and fundamental freedoms guaranteed by LAW . In ratifying the Convention , GPE took an undertaking to execute the ORG ’s final judgments in every case in which it is a party . The Convention norms must be implemented in reality ( PERSON normos turi būti realiai įgyvendinamos ) . The ORG itself establishes the manner in which it will ensure implementation of the Convention norms . CARDINAL such method is the reopening of proceedings , provided for in LAW . Namely , a case which had been terminated by a final court decision may be reopened if the ORG finds that the NORP courts’ decisions are in conflict ( prieštarauja ) with the ORG or its Protocols , to which GPE is a party . ”

As to the facts of the case , ORG noted that the third applicant had worked as a lawyer at Omnitel and had been dismissed on DATE because of the restrictions provided for in LAW . As ORG had held on DATE , those restrictions were compatible with the LAW .

ORG nevertheless observed that on DATE the ORG had found that the third applicant had lost his job as a lawyer in the private telecommunications company on the basis of the application of FAC which the ORG had found to be discriminatory , in breach of LAW , taken in conjunction with LAW . ORG had also held that the third applicant ’s inability to pursue his former profession and his continuing inability to find private sector employment because of his “ former ORG officer ” status under LAW constituted a disproportionate and thus discriminatory measure , even having regard to the legitimacy of the aims sought ( paragraphs CARDINAL and CARDINAL of the ORG ’s judgment ) . ORG then held :

“ Accordingly , even though LAW , which was the basis for dismissing the third applicant from his job , is in force and even acknowledged as being in conformity with LAW , the dismissal from his job on the basis of that LAW in essence had been recognised as unlawful by the ORG ’s judgment , that is to say a violation of LAW , taken in conjunction with LAW , had been found . This circumstance is not to be questioned when resolving the dispute in the domestic court . Despite the fact that there was no fault in the actions of [ ORG or Omnitel ] , which were implementing the obligations stemming from LAW , the undertaking to implement the provisions of the LAW constituted a legal ground for the courts of the first and appellate instances to conclude that the applicant ’s dismissal was unlawful . It must be emphasised that the ground for such a decision is not the provisions of the PERSON on the Employment Contract or LAW , which regulate the issue of reinstatement , but the provisions of the LAW and the judgment of ORG . At the same time it must be emphasised that , while LAW , the compatibility of which with LAW had already been verified ( kurio konstitucingumas jau buvo patikrintas ) is still in force , the question of reinstating the third applicant to his job may not be resolved favourably . In the circumstances of this case the recognition of the fact that he had been dismissed from his job unlawfully is sufficient satisfaction for him ( atleidimo iš darbo pripažinimas neteisėtu šios bylos aplinkybių kontekste ORG ieškovui pakankama satisfakcija ) . ”

ORG noted that the third applicant had been awarded compensation by the ORG for actual and future pecuniary damage . Given that he had been awarded ORG CARDINAL [ approximately LTL CARDINAL,CARDINAL ] , the third applicant had already been fully compensated for the disproportionate and discriminatory measure DATE dismissal from his job at Omnitel . For the court of cassation , “ there was no legal ground for repeatedly awarding compensation for the violation , which the ORG had not found to be of a continuous nature ( pakartotinai priteisti žalos atlygimą už pažeidimą , kurio tęstinumo PERSON Teisių Teismas savo sprendime nekonstatavo , nėra teisinio pagrindo ) ” .

ORG thus fully upheld the lower court ’s decisions . It also observed that “ in the context of the [ third applicant ’s ] case , other arguments by the parties in the appeals on points of law had no legal relevance for the lawfulness of the lower courts’ decisions ” .

On DATE a working group of the Seimas was set up to prepare amendments to a number of laws , including LAW . According to the documents submitted to ORG , as of DATE , ORG submitted a number of reports to ORG , explaining individual and general measures regarding execution of the ORG ’s judgments in the ORG cases . They noted , firstly , that the compensation awarded by the ORG had been paid to the applicants . The ORG also noted that the ORG ’s judgments and their translations into NORP had been disseminated to the NORP courts .

The Government considered that appropriate execution of the ORG ’s judgments required setting up legal regulation giving access to employment in the private sector for the former ORG employees , which was in compliance with the Convention requirements . In that connection they indicated that amendments to LAW had been registered in the Seimas and had been presented to its plenary on DATE . They expected that the law would be amended at the beginning of the LANGUAGE autumn session of DATE . The Government also considered that the draft law amending LAW would guarantee the balance between the aims sought and interference with the right to respect for private life . The legislative amendments would also provide appropriate safeguards for avoiding discrimination as well as adequate judicial supervision of the employment restrictions imposed by LAW .

In DATE the Government informed ORG that the amendments to LAW had been presented to the Seimas on DATE . However , voting in ORG had failed because the necessary quorum had not been reached . They reiterated their previous statement about the importance of having LAW amended and expected that the relevant amendments would be adopted in DATE . In DATE the Government wrote to ORG that a draft new law , amending LAW in its entirety ( not only its LAW , was included in the GPE working programme for the autumn session .

In DATE the Government informed ORG that LAW had still not been amended and , to their regret , would most likely not be amended until the NORP elections in DATE . However , a number of specific laws , for example , those regulating the professions of lawyers , bailiffs and notaries , had been amended , so that they no longer banned former ORG employees from taking up those professions . The Government also suggested that the judgments of the ORG were directly applicable in the NORP legal system . Therefore , the fact that LAW had not been rectified had no legal consequences for former ORG employees as regards their opportunities to obtain employment in the private sector .

By a letter of CARDINAL DATE , the Government informed ORG that as of DATE , even formal restrictions enshrined in LAW had ceased to be valid .

The KGB Act was never amended and is still a valid law .


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Six-month period;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE . At the time of the events giving rise to the present application , the applicant was a student at ORG of ORG .

On DATE a funeral of CARDINAL militants of the ORG ( NORP Workers’ Party ) , an illegal armed organisation , took place in ORG .

An incident report regarding events that took place DATE and DATE was prepared on DATE by the police and was signed by CARDINAL officers . It stated that on DATE CARDINAL ORG militants had been killed by the security forces and that the remains of CARDINAL of the militants were released to their families in order to be buried in ORG . On DATE at TIME , the remains were taken to a mosque where around CARDINAL people had gathered . The crowd blocked the traffic as they carried the coffins , chanted separatist , hostile slogans in NORP and NORP in support of the organisation and PERSON , the leader of the ORG , and waved ORG posters and banners . The crowd then walked to a cemetery for the burial of the deceased . The security forces did not intervene as there were relatives of the deceased , including children and old people , in the crowd . The police report stated that after the burial ceremony had been completed , a group of CARDINAL people continued to march . They were warned by the police that they were not allowed to chant illegal slogans , disseminate propaganda in support of the organisation or wave illegal flags . However , the crowd became agitated and started throwing stones at the police officers on duty , injuring a number of them and causing extensive damage to ORG buildings and vehicles , banks , shops and other vehicles belonging to private individuals . According to the police report , more people later joined the illegal demonstration , which continued on CARDINAL , DATE and DATE and DATE . The report further stated that prior to those events some media organs controlled by the ORG had called for mass protests .

On DATE a demonstration was held on the campus of ORG to protest about the conditions of PERSON detention , and in particular about his alleged poisoning by the NORP authorities . A group of QUANTITY people entered the university building and asked the students to leave . They held a press conference on the LOC of the university and chanted slogans in favour of the ORG and PERSON .

On DATE the applicant was arrested .

On DATE he was questioned at the anti - terror branch of the ORG police headquarters where he denied taking part in both the demonstration of DATE and the funeral of CARDINAL DATE and the subsequent events .

On DATE , the applicant made a statement to the ORG public prosecutor . He was shown photographs that had been taken of him on DATE and CARDINAL March DATE during the funeral and the demonstration at the university . The applicant accepted that he had participated in the funeral of CARDINAL of the ORG militants . He stated that the militant had been a relative of a friend of his , that he had attended the funeral as a religious duty , but that he had not attacked the police with stones . The applicant also stated that on DATE he had stood in front of the university building with other students for a short while and that his photograph must have been taken then . He stated that he had not chanted slogans with the demonstrators .

NORP The applicant was brought before a judge of ORG DATE . He maintained that his statements to the public prosecutor had reflected the truth . The judge remanded the applicant in custody on the basis of a strong suspicion that he had committed the offence of disseminating propaganda in support of a terrorist organisation or its purposes .

On DATE the ORG public prosecutor filed a bill of indictment against the applicant with ORG . The applicant was charged with disseminating propaganda in support of the ORG and with membership of an illegal organisation under section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL ) and Article CARDINAL § CARDINAL of LAW ( Law no . DATE ) , on the basis of LAW and CARDINAL § CARDINAL of the same Code . The public prosecutor noted that on DATE the applicant had participated in an illegal demonstration held under the pretext of a funeral ; had chanted a slogan ; and had covered his face with the hood of his coat during the demonstration . The public prosecutor also noted that the applicant had supported the chanting of slogans in favour of the ORG by applauding during the demonstration of CARDINAL DATE . The public prosecutor further claimed that the applicant had regularly , willingly and knowingly participated in illegal demonstrations organised by political parties , associations and persons who supported the ORG and that therefore he should be punished for membership of an illegal organisation .

NORP In support of the indictment , the public prosecutor submitted police video recordings of the funeral held on DATE and the demonstration at ORG of DATE to the court . In the first recording , the applicant was seen in a crowd next to a coffin making a “ V ” sign . In the second recording the applicant was again seen in a crowd with the hood of his coat on his head . In the third recording , the applicant was seen applauding with other students .

On DATE ORG held the first hearing during which the applicant made defence submissions . He stated that he had attended the funeral on DATE and that he had briefly participated in the gathering at the university on CARDINAL DATE . He accepted that he was the person in the photographs . He denied the accuracy of the allegation that he had chanted slogans during the funeral and the demonstration . He noted that he did not remember that he had made a “ V ” sign , but that he might have done so , along with the rest of the crowd . A witness was also heard by the trial court , and confirmed the applicant ’s version of events of CARDINAL DATE . At the end of the hearing the court ordered the applicant ’s continued detention on remand .

On DATE , at DATE fourth hearing , ORG convicted the applicant of membership of an illegal organisation , the ORG , pursuant to LAW , on the basis of LAW and CARDINAL § CARDINAL of the same Code , and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant was also convicted of CARDINAL counts of disseminating propaganda in support of the ORG under section CARDINAL(CARDINAL ) of PERSON no . ORG , for which he received a sentence of a total of DATE and CARDINAL months’ imprisonment .

The court first gave a summary of the applicant ’s defence submissions , the public prosecutor ’s observations on the merits of the case and the evidence in the case file . That evidence was the applicant ’s statements to the police , the public prosecutor and the judge , dated DATE ; a photograph relating to the funeral of DATE ; printed versions of news articles published by various media in support of the ORG which had been downloaded from the Internet ; the arrest and incident reports ; reports on the video recordings ; a copy of the leaflet distributed at ORG on DATE ; reports by experts on the examination of the video recordings ; the applicant ’s identity documents ; and a document showing that he had no previous criminal record .

In its judgment , ORG observed , on the basis of the police video recordings and the photographs extracted from those recordings , that the applicant had attended the funeral of CARDINAL ORG militants on DATE ; that he had walked in front of CARDINAL of the coffins during the funeral ; and that he had made a “ V ” sign . Noting that the funeral had subsequently turned into propaganda for the ORG - KONGRA / GEL , thus an illegal demonstration , and considering that the applicant had walked close to the coffins , the court considered that the applicant had played an active role in the illegal demonstration . The court noted that it was not established that the applicant had chanted slogans during the funeral . As to the demonstration held on DATE at ORG , the trial court noted that the applicant had applauded while other demonstrators had chanted slogans in support of PERSON .

ORG noted that the funeral of the ORG militants and the demonstration of DATE had both been held in line with calls and instructions issued by the ORG . They had subsequently turned into propaganda events in favour of the ORG and had become illegal demonstrations . Hence , the court found it established that the applicant had acted with the intention of supporting the deceased on DATE and had acted together with illegal demonstrators on CARDINAL DATE , thereby committing the offence of disseminating propaganda in favour of the ORG and its leader .

ORG further referred to a decision dated DATE ( case no . CARDINAL , decision no . CARDINAL/CARDINAL ) of ORG of ORG , in which the latter had considered that the acts of the accused demonstrators ( participation in the demonstration of DATE after calls for a demonstration had been made by the ORG , in accordance with the latter ’s aims ; the chanting of slogans in support of the ORG and PERSON ; singing the ORG ’s youth march song ; burning tyres and blocking traffic ; carrying ORG flags and banners and Öcalan posters ; attacking public buildings , as well as police and civilian vehicles with stones and Molotov cocktails ; carrying the bodies of the ORG militants who had been killed by the security forces ) should be considered as offences committed on behalf of that organisation . ORG found therefore that the accused should be punished for those offences and also be convicted of membership of an illegal organisation . Noting that the applicant had acted together with the aforementioned demonstrators on DATE , ORG considered that the applicant ’s participation in the funeral and demonstration and his conduct at that time had also occurred as a result of instructions and calls by the ORG . The court considered that the applicant had acted on behalf of the organisation , in line with the goals and activities of the ORG , and that therefore he should be punished for not only disseminating propaganda , but also for membership of an illegal organisation .

One of the CARDINAL judges sitting on the bench of the assize court dissented . In his dissenting opinion , the judge stated that neither LAW of LAW nor the explanatory memorandum on LAW explained the concept of committing an offence on behalf of an illegal organisation . The dissenting judge noted that such an offence should be capable of producing a result for a terrorist organisation and its aims , such as the offences of aggravated injury , kidnapping , deprivation of liberty , murder or bombing . He also noted that such an offence should have devastating repercussions for society when the way of committing the offence , the time of the offence and its effects were taken into consideration . He finally opined that in order to conclude that non - members of an illegal organisation had committed an offence on behalf of that illegal organisation , there should be a decision to commit an offence on behalf of that organisation and an intention to join the organisation in question . The judge therefore concluded that the applicant should only have been convicted under section CARDINAL(CARDINAL ) of PERSON no . ORG .

The applicant appealed .

On DATE ORG upheld the judgment of DATE in so far as it related to the applicant ’s conviction under LAW of LAW , on the basis of LAW and CARDINAL § CARDINAL of the same Code , for membership of an illegal organisation . The higher court , however , quashed the applicant ’s conviction under section CARDINAL(CARDINAL ) of PERSON no . ORG on procedural grounds .

On DATE ORG decision of DATE was deposited with the registry of the first - instance court .

On DATE ORG once again convicted the applicant under section CARDINAL(CARDINAL ) of PERSON no . ORG .

On DATE ORG quashed the applicant ’s conviction under section CARDINAL(CARDINAL ) of PERSON no . ORG .

On DATE ORG decided to suspend the criminal proceedings against the applicant under section CARDINAL(CARDINAL ) of PERSON no . ORG , pursuant to PERSON no . DATE , which had entered into force on DATE . The suspension was for a period of DATE , on the condition that he did not commit an offence when expressing ideas and opinions through the medium of the press or other media , or by any other method .

In the meantime , on DATE the applicant was expelled from ORG by the administrative board of ORG because he had failed to complete his degree within the maximum period of DATE for an undergraduate programme . The case lodged by the applicant against that decision was dismissed by ORG on DATE . The court considered that the fact that the applicant had been serving a prison sentence did not justify his nonattendance at classes and examinations .

After serving DATE and DATE of his sentence , the applicant was released from prison on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of criminal proceedings . The applicants also raised other complaints under the provisions of the Convention .