In the case of Jokšas v. Lithuania,
The European Court
of Human Rights (Second Section), sitting as a Chamber composed of:
Guido
Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 22 October
2013,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
. The case
originated in an application (no. 25330/07) against the Republic of Lithuania
lodged with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian
national, Mr Alvydas Jokšas (“the applicant”), on 6 June 2007.
. The Lithuanian
Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
. The
applicant alleged that his right to freedom of expression
had been violated because he had been discharged from the military on account
of public statements he had made (Article 10 of the Convention), which had also
amounted to discrimination on the basis of opinion (Article 14, in conjunction
with Article 10). The applicant also complained that the domestic courts which
heard those complaints were unfair, in breach of Article 6 § 1 of the
Convention.
. On 20 April 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The
applicant
. The applicant
was born on 19 June 1956 and lives in Tryškiai.
. He joined
the Lithuanian army during the 1990s. In 2003 and 2004 respectively the
Commander of the Armed Forces awarded him the “Exemplary Service” and “Merit”
medals.
. On
5 August 2002 the Commander of the Armed Forces and the applicant, who had the military rank of senior non-commissioned
officer (vyriausiasis puskarininkis), concluded a five-year professional
service contract. That contract was to come to an end on 5 August 2007. The
contract also stipulated that in certain circumstances and in accordance with
the rules provided for by the Law on Military Service (hereinafter - “LMS”, see
paragraph 43 below), it could be rescinded even before that date (point 6 of
the applicant’s contract).
. In 2003
the applicant graduated from the College of Management, Law and Languages of Šiauliai
Region and obtained professional qualifications as a lawyer. These were higher-level
non-university studies (aukštosios neuniversitetinės studijos).
. By order
of the Commander
of the Armed Forces of 18 April 2003 the
applicant was assigned military code 42701 as a human resources specialist.
. On
16 August 2005 the applicant’s duties changed: he was transferred to the
post of assistant on legal matters (vado padėjėjas teisės
klausimais) to the Commanding Officer of the Grand Duke Vaidotas battalion.
. On
1 March 2006 the daily Kauno Diena published an article ‘War
without constitutional rights’ (Karas be konstitucinių teisių),
which was written after the applicant had approached the newspaper with criticism
of the new Army Disciplinary Statute, adopted by the Lithuanian Seimas almost unanimously
a couple of months previously. In the article the applicant argued that the new
Disciplinary Statute restricted a serviceman’s defence rights when he was the subject
of disciplinary proceedings. In particular, the Statute was vague on servicemen’s
right to acquaint themselves with the substance of any internal investigation
report against them. The applicant also claimed that during disciplinary
proceedings a serviceman had only a limited opportunity to have recourse to
legal representation, which in his view was particularly harmful, since few
servicemen had the proper legal knowledge to defend themselves in person. The
article further stated that the applicant, discontented with the new Statute, had
conveyed his observations and suggestions to the President of the Republic,
asking the latter to veto the Statute. According to Presidential office sources,
the President took account of the applicant’s proposals but decided to promulgate
the Statute anyway. The Chairman of the Committee of National Security of the
Seimas commented that the Committee had received numerous suggestions in
connection with the text of the Statute, all of which had been given serious
consideration before the Statute was adopted.
. On
1 March 2006 the applicant’s superiors initiated an internal investigation
into the applicant’s actions as regards his communication with journalists from
the daily Kauno Diena and contact with the State President.
. On
13 March 2006 Kauno Diena published a new article, ‘Criticism of the
Statute angers the Ministry [of Defence] (Statuto kritika užrūstino
ministeriją)’. The article noted that the Ministry of Defence had initiated
an internal investigation after the publication of the first article. It
further quoted the applicant as stating that, disappointed with the Seimas for
adopting the new Disciplinary Statute and with the State President for
promulgating it, he had a right to show initiative as a citizen and, under the
European Convention on Human Rights, to impart information and ideas
unobstructed.
. The
internal investigation into the actions of the applicant was terminated on
22 March 2006. It was established that the applicant had had prior
permission from his superiors to address the State President. However, he had
not obtained permission to contact the newspaper. The army investigator
nevertheless considered that as cited in the article ‘War without
constitutional rights’ the applicant had been expressing only his own personal
opinion, and had not disseminated any official information. Consequently,
Article 21 § 3 of LMS applied, pursuant to which soldiers had a right to
express their opinions unless there was a conflict with their duties as
soldiers or with military discipline. No disciplinary penalties were imposed on
the applicant.
. On
11 May 2006 the applicant’s superiors concluded that the applicant had
failed to perform his duties as a legal advisor, namely he had recommended the commanding
officer of his battalion to grant childcare leave to another soldier, R.V., in
breach of applicable legal norms. The army imposed upon the applicant a disciplinary
penalty (drausminę nuobaudą), namely a reprimand (papeikimą).
On appeal against this penalty, on
25 April 2008 the Supreme Administrative Court held that the applicant had
acted lawfully and that his recommendation that R.V. be granted childcare leave
was lawful. The disciplinary penalty was quashed.
. On 19
June 2006 the applicant’s superiors signed an order dismissing him from the position
of battalion commander’s assistant on legal matters with effect from 27 June
2006, on the basis of Article 45 § 4 of LMS. The order further stipulated that by
28 June 2006 documents discharging the applicant from the army should be
prepared and submitted to the Minister of Defence.
. On
27 June 2006 the applicant was dismissed from the position of battalion
commander’s legal advisor on the ground that he had reached retirement age, in
accordance with Articles 38 § 1 (7) and 45 § 4 of LMS.
. On
3 July 2006 the Ministry of Defence issued a decision to terminate the
applicant’s professional military service contract and to transfer him to the
army reserve. The order was based on Articles 38 § 1 (7) and 45 § 4
(2) of LMS, whereby a serviceman of the applicant’s statutory rank had to be
transferred to the reserve when he reached fifty years of age.
. On
22 July 2006 the applicant appealed to the Vilnius Regional Administrative
Court, asking it to quash the decision of 3 July 2006 and to reinstate him
into professional military service. The applicant also claimed that he had been
discriminated against because he had defended another serviceman (see paragraph
15 above) and because of his views as expressed in the publication in Kauno Diena,
in breach of Article 14 of the Convention. The applicant asserted that there
were hundreds of soldiers in the Lithuanian army who did not have speciality
codes allowing them to serve until 55 years of age. However, they continued to
serve in the army until the expiry of their military service contracts, even
though they had already reached retirement age. The applicant thus requested the
court, on the basis of Article 57 § 4 of the Law on Administrative Proceedings
(see paragraph 44 below), to oblige army officials to produce certain documents
regarding his dismissal and regarding the situation of four servicemen, R.L.,
V.S., J.Š. and M.I., who to his knowledge had continued to serve in the military
in the same Grand Duke Vaidotas battalion despite the fact that they had reached
retirement age. He noted that those documents were in the custody of the
battalion commander and he could not obtain them on his own. Lastly, the
applicant acknowledged that in 2005 the Minister of Defence had changed the military
specialist codes and he had been transferred to other duties, those of legal
specialist. All officers with lawyer’s duties were given the code of legal
specialist, but the applicant, a non-commissioned officer, had not been given a
legal specialist code. This meant that at that time he had no legal specialist
code at all.
. The
administrative courts found that under the applicable legislation the applicant
was obliged before he could bring a court action to exhaust other non-judicial
remedies, namely to lodge an appeal with the Minister of Defence.
. The
applicant then appealed to the Minister of Defence against his discharge from
the army. On 28 August 2006 the Ministry of Defence held that the decision
to discharge the applicant from the army was lawful, and dismissed his appeal.
. On
23 October 2006 the Vilnius Regional Administrative Court dismissed as
unfounded the applicant’s complaints regarding the annulment of his
professional military service contract and his discharge from the army. The
court observed that under Articles 38 § 1 (7) and 45 § 4 (2) of LMS a
serviceman must be discharged from the army once his military service contract
expired or (arba) he reached retirement age, which in the applicant’s
case was fifty years. The applicant had reached the age of fifty on
19 June 2006.
The court further noted that under Article 45
§ 6 of LMS, soldiers who had been holding military specialist posts under the
Minister of Defence’s decision of 13 June 2005 could be discharged on
reaching 55 years of age. However, the applicant’s duties of a legal affairs assistant
(vado padėjėjas
teisės klausimais) to the commander of the
Grand Duke Vaidotas battalion had not been included in the list approved by
that decision. Accordingly, he could not rely on the age-related exception. In
addition, in another case the Supreme Administrative Court had already held
that reaching retirement age was the ground for discharge
of a soldier from the military, notwithstanding whether or not his military
service contract had expired yet (ruling of
12 March 2004 in case no. A2-262-04).
. The
court further observed that Article 46 of LMS gave the Minister of Defence discretion
to extend, in the interests of the military, the professional military service
of a soldier who had reached the age when he or she should be discharged. However,
this was a matter of discretion, and placed no obligation on the Minister.
The court did not address the applicant’s
argument that four other servicemen of his unit had been allowed to continue
military service despite having reached the age of discharge. Nor did it reply
to the applicant’s request for the military service records of those four
servicemen.
. In the
meantime, the applicant also lodged a complaint with the Ombudsman, challenging
his discharge from the army. On 2 November 2006 the Ombudsman refused
to examine the complaint on the ground that an identical complaint was being
examined by the administrative courts, and the law did not allow the Ombudsman to
deal with such complaints.
. On
3 November 2006 the applicant appealed to the Supreme Administrative Court,
reiterating his arguments of unlawful dismissal and discrimination. His appeal statement
indicates that he reiterated his request that his superiors in the Grand Duke
Vaidotas battalion be ordered to produce certain documents from the military
service records of the four servicemen mentioned above, who he stated had continued
serving in the same unit as the applicant despite having reached retirement
age. The applicant asserted that discrimination would be easy to prove if the court
would help him to obtain the military service records of those four servicemen.
. As
regards the military specialist codes, he noted that in August 2002 he had
been granted specialist code 0132 on the basis of the military code system
established by the Minister of Defence in 1998, thus allowing him to serve
until the age of 55. After the Minister of Defence amended the military code
system in 2002 the applicant was given military specialist code 42701. When in
2005 the Minister of Defence again changed the system of military specialist
codes and the applicant was transferred to the post of legal specialist, no specialist
code was assigned to him. The applicant observed that officers who had legal posts
had been given the code of legal specialist, but that he, as a non-commissioned
officer, did not have such a code. Above all, “at present no specialist code at
all had been granted to him” (šiuo metu iš viso man nėra suteiktas joks
specialisto kodas).
Lastly, the applicant strongly asserted that
the lower court had erred in interpreting and applying Article 38 and other
provisions of LMS.
. By a
decision of 22 May 2007 the Supreme Administrative Court dismissed the
appeal. In setting out the reasons it observed that pursuant to Article 38 § 1
(7) of LMS, a serviceman had to be dismissed from military service once his
contract had expired or he had reached the age of discharge, unless the
duration of his military service had been extended. In the applicant’s case, as
a non-commissioned officer, the age of discharge for him was 50. The court also
emphasised that that legal norm was imperative, and applied to contracts which
were still valid, and not to those which had already expired (teisės
norma skirta reglamentuoti teisinius santykius dėl galiojančios, o ne pasibaigusios karo tarnybos sutarties
nutraukimo). This interpretation also followed from
Article 31 § 4 of LMS, which provided that a contract could be annulled ahead
of time in cases provided for in Article 38 of that Law. Moreover, the possibility
of the applicant’s military service contract being rescinded had also been
mentioned in the contract itself (see paragraph 7 above). Taking into account
the imperative nature of Article 38 § 1 (7), it was the army command’s duty,
and not a right, to rescind a contract once the conditions mentioned in that
provision had been met. Furthermore, Article 46 of LMS provided only discretion
for and not an obligation on the Minister of Defence to extend a serviceman’s
military service.
. The Supreme
Administrative Court also noted that according to his duties the applicant did
not fall into the sphere regulated by Article 45 §§ 5 and 6 of the Law, that is
he did not have military specialist status. Moreover, exceptional extension of term
of service under Article 46 had not been applied to him. Consequently, the
facts of the case fully matched the circumstances listed in Articles 38 § 1 (7)
and 45 § 4 (2) of the Law. The first-instance court’s decision was thus fully
upheld.
The appellate court did not address the
applicant’s request for the supplementary documents to be obtained, nor did the
court deal with the allegation of discrimination against the applicant because
of his service status.
. In
addition to the administrative proceedings concerning his discharge from
military service, the applicant also instituted another set of somewhat linked proceedings
concerning his dismissal from Vaidotas battalion, which formally preceded the
discharge from military service. He reiterated the arguments expressed in the
earlier proceedings. In relation to freedom of expression, the applicant merely
mentioned that he had been persecuted for his opinions because of the legal decision
he had issued which was favourable towards another serviceman (see paragraph 15
above). It also appears from the summary of the applicant’s complaints in the record
of the court decision of 12 July 2007 (see the next paragraph), that this time
the applicant had made no reference to the publication in Kauno Diena,
but insisted that he had been discriminated against because of his social
status as a non-commissioned officer vis-ŕ-vis the commissioned officers.
. On
12 July 2007 the Vilnius Regional Administrative Court dismissed the applicant’s
claim, fully upholding the reasoning that, in accordance with Articles 38 § 1
(7) and 45 § 4 (2) of LMS, the army was under an obligation to discharge him
from the military because of his age.
. The
court also noted that the qualifications required for a legal post had been
established by the Minister of Defence on 13 June 2005. One of the
obligatory requirements was university-level higher education in law (aukštasis
universitetinis teisinis išsilavinimas). Accordingly, the applicant was not
qualified to be appointed to a legal post, because in 2003 he had graduated
from Šiauliai College of Law and Management, from the programme of higher-level
non-university law studies (aukštųjų neuniversitetinių teisės
studijų programa).
. As regards
the alleged discrimination against non-commissioned officers vis-ŕ-vis commissioned
officers, the court observed that different requirements were applicable to
soldiers of different ranks to reflect their experience and qualifications, as
had been established in Article 52 § 1 of LMS. Similarly, by a ruling of
28 October 1992, no. 811, the Government had approved the Regulations
on Military Service (Tarnybos statutas), point 11 of which
established that all Lithuanian military officers are in command of soldiers
and non-commissioned officers (visi karininkai yra kareivių ir
puskarininkių ir liktinių viršininkai). Given that legal acts
established different social status for officers and non-commissioned officers,
the same requirements could not apply to both. The court thus held that the applicant’s
argument that he had a right to serve until 55 years of age and was not to be discharged
from the army was based only on his own ideas and erroneous interpretation of the
law. Lastly, the court dismissed the applicant’s claim that he had been
persecuted for his opinions, having concluded that that claim was based only on
the applicant’s own suppositions and guesses.
. The
applicant appealed, arguing that he had been persecuted because of his opinion
on whether to grant childcare leave to another soldier. It appears from the
transcript of the hearing of his complaints in the appellate court decision
that the applicant did not mention the publication in the Kauno Diena newspaper.
. On
6 May 2008 the Supreme Administrative Court dismissed the appeal, noting
that the applicant’s claim had already been decided in another administrative
case, by a decision of 22 May 2007 (see paragraphs 27 and 28 above).
The court confirmed that Article 38 § 1 (7) of LMS provided for two
alternatives when a soldier had to be discharged from the army: when his
contract expired or (emphasised by the appellate court) when he reached the
age stipulated in Article 45 § 4 of that Law. Accordingly, once a serviceman
reached the retirement age, the army had an obligation, and not a right, to discharge
him. The court also noted that it was free to assess evidence to establish the
circumstances of the case. However, the applicant had not provided any evidence
confirming that he had been persecuted for the opinion he had given on the grant
of childcare leave to another soldier.
. The
applicant has been receiving a military pension since 4 July 2006.
B. The four servicemen who
served in the same Grand Duke Vaidotas battalion as the applicant
. It appears
from the parties’ explanations and the documents presented that the situation
of the four servicemen whom the applicant had mentioned in his complaints of
discrimination to the administrative courts (see paragraphs 19 and 25 above), was
as follows.
. The five-year
professional military service contract with 46-year-old junior sergeant (jaunesnysis
seržantas) M.I. was signed (by extending a previous contract) on 16 January
2002. His military rank and the requirements of Article 45 § 4 (1) of LMS
stipulate that the serviceman was to be discharged at the age of 40. However, from
2000 M.I. held a military specialist post as a weaponry specialist, which allowed
him to serve until the age of 55 under Article 45 § 6 of that Law.
. The five-year
professional military service contract with 49-year-old corporal (grandinis)
J.Š. was signed (by extending a previous contract) on 16 January 2002. His military
rank and the requirements of Article 45 § 4 (1) of the LMS stipulated
that the serviceman was to be discharged at the age of 40. However, from 1999 J.Š.
had a military specialist post as a motor repairman and electrician, which
allowed him to serve until the age of 55. The contract with the serviceman was later
extended until 8 June 2007, his 55th birthday. J.Š. was finally discharged from
the army on 21 June 2007.
. The six-year
professional military service contract with 38-year-old junior sergeant V.S. was
signed (by extending a previous contract) on 25 December 2001. Her rank
and the requirements of Article 45 § 4 (1) of LMS stipulated that she could
serve until the age of 40. In addition, in 2000, 2003 and 2005 she was granted specialist
status in accounting and human resources management.
. The five-year
professional military service contract with 42-year-old corporal R.L. was signed
(by extending a previous contract) on 16 January 2002. Her rank of corporal
and the requirements of Article 45 § 4 (1) of LMS stipulated that she
could serve until the age of 35. However, in 2000 she had been granted line specialist
status (rikiuotės specialistė), which allowed her to serve
until the age of 55. Moreover, in 2006 she had been promoted to the rank of senior
sergeant, and thus could serve until the age of 50.
C. The situation of two other
servicemen
. The
Government provided the Court with two additional examples where servicemen
were discharged from professional military service on the ground of age while
they still had valid contracts. They firstly noted senior navigator air force major
V.Ž., born in 1951, whose contract was valid until October 2005. At the age of 52
he was honourably retired from the army in December 2003, on the basis of Articles
38 § 1 (7) and 45 § 4 (6) of LMS having reached the statutory age, which
is 46 for a major. However, it appears from the documents before the Court that
he was entitled to serve until the age of 55 because he was a senior navigator
and thus a specialist, as provides Article 45 § 6 of LMS.
. The Government
also referred to the case of senior lieutenant L.P., born in 1960. He had a five-year
military service contract signed in March 2001. In accordance with
Articles 38 § 1 (7) and 45 § 4 (4) of LMS, a person of L.P.’s military rank had
to be discharged at the age of 40. However, in 1999 he had been granted
specialist status, that of supply officer (aprūpinimo karininkas),
and thus could serve until 55. In June 2002 L.P. had been transferred to a new
post which was no longer included in the list of military specialists. L.P. was
discharged on the basis of age in March 2003, when he was 43 years old.
II. RELEVANT DOMESTIC LAW AND
PRACTICE
. In
Lithuania professional military service is regulated by the Law on the
Organisation of the National Defence System and
Military Service (Krašto apsaugos sistemos organizavimo ir karo tarnybos
įstatymas, “the Law on Military Service” or “LMS”). At the time
relevant to the instant case, the law read as follows:
Article 21. General serviceman status
“1. A serviceman shall be a
defender of the State of Lithuania.
2. A serviceman’s service
shall require a special relationship of loyalty to the State, which shall be
regulated by laws and other legal acts. The status of a serviceman shall be
specified by this Law and other laws, statutes and legal acts regulating the activities
of the Army and military service. With the exception of the cases specified by
laws and other legal acts, the laws and other legal acts regulating employment
and civil service relations shall not apply to servicemen.
3. Servicemen shall exercise
the human rights and freedoms guaranteed by the Constitution of the Republic of
Lithuania. Exercise by servicemen of the rights to ... dissemination of
information and expression of opinion may be restricted by laws and statutes
based on the law only to the extent that is necessary for the performance of a
serviceman’s duties and to ensure military discipline and obedience as well as to
fulfil the requirements of service ...”
Article 31. The professional military
service contract
“1. A
professional military service contract is concluded between the Ministry of
Defence and a citizen of the Republic of Lithuania: the Ministry of Defence
accepts a person into professional military service and the citizen pledges to
fulfil his service obligation in accordance with the conditions and procedures
established in the Law and other legal acts, and to perform all duties ...
4. The
contract may be terminated ahead of time in the circumstances set forth in Articles
37 and 38 of this Law.”
Article 36. Restrictions on those
engaging in military service
“1. Servicemen
in active service shall be prohibited from participating in political
activities, including:
1) membership
of a political party or organisation ...
3) making political
statements, articles or speeches publicly voicing disagreement with policies
declared and implemented by the democratically elected government of the State
(the Seimas, the President of the Republic, and the Government) or publicly
raising political demands to the government of the State ...”
Article 38. Grounds for termination
of a professional military service contract or a volunteer military service contract
“1. A
professional military service contract or a volunteer military service contract
must be terminated (turi būti nutraukiama) and/or a serviceman must
be discharged from the service in the national defence system when ...
6) a
serviceman in professional military service violates the requirements and
restrictions of Article 36 of this Law;
7) the
term of validity of a professional military service contract or a volunteer
military service contract expires or the serviceman reaches the age specified
in paragraph 4 of Article 45 ... of this Law, where the period of service has
not been extended in accordance with the established procedure ...
4. The
right to terminate professional military service contracts or volunteer
military service contracts on the grounds provided for in this Article shall be
vested in the Minister of Defence or the Commander of the Armed Forces and
other commanders or officials authorised by him.”
Article 45. Transfer to
the reserve of servicemen in professional military service
“1. When a professional
military service contract is terminated on the grounds provided for in Articles
37 and 38 of this Law (...), or when the term of validity of the professional
military service contract expires and is not extended, a serviceman shall be
dismissed from office, removed from duties and discharged from professional
military service within no more than fourteen calendar days ...
4. With the exception of the
servicemen indicated in paragraphs 5 and 6 of this Article, servicemen in
professional military service shall be transferred to the reserve on reaching the
following age:
1) those
with a rank lower than senior sergeant [corporal falls into this category]: 40
years;
2) those
with a rank between senior sergeant and non-commissioned officer (inclusive): 50
years;
3) those
with the rank of lieutenant: 35 years;
4) those
with the rank of senior lieutenant: 40 years;
5) those
with the rank of captain: 43 years;
6) those
with the rank of major: 46 years ...
5. Military
chaplains may, regardless of their current rank, be transferred to the reserve
upon reaching the age of 60, and the chief military chaplain of the Army on
reaching 65.
6. Servicemen
in professional military service who hold military specialist positions on the
list of military specialities as approved by an order of the Minister of
Defence may be transferred to the reserve on reaching the age of 55.”
Article 46. Extension of service for servicemen
who have reached the age of transfer from professional military service to the reserve
“In
some cases, the Minister of Defence may, taking into account the needs of the
national defence system, extend professional military service for a serviceman
up to the rank of colonel who has reached the age specified in paragraph 4 of
Article 45 of this Law under a fixed-term contract on professional military
service for a period not exceeding two years (or two extensions for a period of
one year each). Upon the expiry of this term, the Minister of Defence may further
extend professional military service for a period not exceeding two years under
such a contract, solely for officers up to the rank of major.”
Article
48. Investigations of military service disputes
“1. In accordance with
procedures established by the Minister of Defence, disputes regarding
acceptance for military service, removal from duty, transfer to other duty
assignments, promotion, and extension of contracts, shall be investigated.
Decisions may be appealed against through the chain of command up to the
Minister of Defence. Courts shall not try these disputes.
2. If a professional or
volunteer serviceman believes that his dismissal from military service is
unlawful under the procedure and conditions established by the Military
Discipline Statute, he may lodge a complaint with a higher commander or
official, up to the Minister of Defence. The decision of the Minister of
Defence may be appealed against to the administrative court within one month of
receipt of the decision or of the announcement thereof.
3. If the court determines
that a professional or volunteer serviceman has been dismissed from service not
in compliance with the provisions of this Law, the court may reinstate that
serviceman in professional or volunteer military service or place him in the
temporary personnel reserve of professional military service. The serviceman is
to receive back pay for the period of his imposed absence from the service...
4. If an individual is
dismissed from professional military service on the basis of the provisions of
this Law but the court decides that the dismissal procedure established by
legal acts has not been complied with, the court may not reinstate the
serviceman into professional military service or change the basis of his
dismissal; however, the court may award monetary compensation equal to up to
three months’ pay to the professional military serviceman, irrespective of whether
or not severance pay was due and has been paid.”
Article 52. Military ranks
“1. Military ranks are
established in order to regulate relations among servicemen and indicate their
skill and service experience. Only active military and reserve servicemen
registered in the National Defence System and those retired from service may
have military ranks.
2. Servicemen are grouped by
ranks as:
1) soldiers;
2) sergeants;
3) senior non-commissioned
officers;
4) junior officers;
5) senior officers;
6) generals and admirals.”
. The Law
on Administrative Proceedings at the relevant time stipulated:
Article 57. Evidence
“1. Evidence
in an administrative case consists of all factual data found admissible by the
court which hears the case and on the basis of which the court finds, according
to the procedure established by law, that there are circumstances which justify
the claims and rebuttals of the parties to the proceedings and other
circumstances which are relevant to the fair disposition of the case, or that
there are no such circumstances.
2. The
above-mentioned factual data shall be established with the help of the
following means: statements by the parties to the proceedings and their
representatives, witness statements, explanations by specialists and expert opinions,
physical evidence, documents, and other written, audio and visual evidence ...
4. The
evidence shall be submitted by the parties to the proceedings and other
participants in the proceedings. As necessary, the court may advise the said
persons to submit additional evidence, or at the request of these persons or on
its own initiative compel the production of the required documents and demand
that officials provide explanations ...
6. No
evidence shall have for the court any value set in advance. The court shall
assess the evidence disinterestedly on the basis of scrupulous, comprehensive
and objective review of all the circumstances of the case on the basis of the
law as well as the criteria of justice and reasonableness.”
Article 81. Comprehensive and objective
review of the circumstances of the case
“When
hearing administrative cases judges must take an active part in the examination
of evidence, establish all the circumstances relevant to the case, and make a
comprehensive and objective review of the said circumstances.”
. The list of military specialities (karinių specialybių
sąrašas), approved by the Minister of Defence on 13 June 2005,
mentions “lawyer” as a speciality open to an “officer”. A prerequisite for the
lawyer speciality is legal education to university level.
. As regards
domestic case-law concerning the practical application of Article 38 § 1 (7) of
LMS, on 22 December 2003 in case no. A11-1275/2003 the Supreme
Administrative Court pointed out that that provision linked the age reached by
the serviceman with the requirement for his professional military service contract
to be terminated and for him to be discharged from professional military
service. The court also indicated that dismissal of a serviceman because of his
age was linked simply to age, and not to the rescission of the military service
contract (kario atleidimas iš pareigų dėl nustatyto amžiaus
siejamas su pačiu nustatyto amžiaus suėjimo faktu, o ne su sutarties
nutraukimo faktu).
. On 12
March 2004 in case no. A2-262-04 the Supreme Administrative Court confirmed
its position that Article 38 § 1 (7) of LMS was the ground for discharge of a
soldier from military service because of age reached, notwithstanding whether or
not his military service contract had expired yet.
THE LAW
I. ALLEGED VIOLATION OF
ARTICLE 6 § 1 OF THE CONVENTION
. The applicant
complained that the administrative court proceedings concerning his dismissal
from the army were unfair. He relied on Article 6 § 1 of the Convention,
which reads as follows:
“In the determination of his civil
rights and obligations ... everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. The parties’ submissions
1. The applicant
. The applicant
argued that the Vilnius Regional Administrative Court and the Supreme
Administrative Court, in their decisions of 23 October 2006 and 22
May 2007 (see paragraphs 22, 27 and 28), had been partial and unfair, in that
they had ignored his procedural rights. Given that the essence of his case
concerned allegedly unlawful dismissal from military service on a discriminatory
basis, to fully present his case the applicant had asked both courts to order
his battalion’s commanding officers to provide evidence, which he was not able
to obtain on his own, concerning four soldiers who had served in the same military
unit. If reaching a particular age was an absolute ground for dismissal from
military service, those four servicemen should already have been dismissed on
the same basis, that is, their age, moreover this should have happened much
earlier than when the applicant was dismissed. However, the courts simply
ignored the request, without even giving reasons for refusal. The applicant
thus considered that there was a breach of his right to adduce evidence which
was essential to a fair hearing of his claims of discrimination for his views
and ideas.
2. The Government
. The Government
firstly submitted that Article 6 § 1 of the Convention was not applicable to
the proceedings regarding the applicant’s discharge from professional military
service. Those proceedings concerned neither the traditional category of civil
servants, nor did they concern an ordinary labour dispute relating to salaries,
allowances or similar entitlements. The Government thus took the view that the
nature of the responsibilities of those serving in the armed forces of the
State involved a special bond of trust and loyalty and exercise of public
power. The State therefore enjoyed a wide margin of appreciation regarding
discharge from the military and extension of military service contracts. It
followed that disputes between the State and its military personnel concerning
the application of the provisions of the domestic law on discharge from
professional military service should not be regarded as “civil” within the
meaning of Article 6 § 1, and thus should fall outside the Court’s competence ratione
materiae.
As an alternative argument for incompatibility
of the case under the above provision, the Government noted that Article 48 § 1
of LMS excluded disputes relating to extension of professional military service
contracts from the domestic courts’ jurisdiction. The instant case was, on the
one hand, related to allegedly unlawful discharge. However, on the other hand, it
could also be regarded as related to the issue of extension of a contract.
. Provided
the Court found that Article 6 § 1 of the Convention applied to the
administrative court proceedings at issue, the Government were fully confident
that those proceedings had been fair. They noted that it was for the domestic
courts to assess the evidence before them, as well as the relevance of given
items of evidence, and that Article 6 of the Convention “does not lay down any
rule on the admissibility of evidence as such” (they referred to Barberŕ,
Messegué and Jabardo v. Spain, 6 December 1988, § 68, Series A no. 146,
and Galstyan v. Armenia, no. 26986/03, § 77, 15 November 2007).
That being so, even though the Lithuanian courts had the authority to compel items
of evidence to be produced in court under Article 57 § 4 of the Law on
Administrative Proceedings, those courts were primarily entitled to decide on
the relevance of certain evidence in the context of the applicant’s case.
Similarly, under Article 57 § 6 of that Law, no evidence had any value set in
advance. The Government considered that having objectively and scrupulously
examined the applicant’s case in the light of the relevant legal provisions,
the domestic courts had found that the prerequisite conditions necessary to
discharge a serviceman because of age, established in Articles 38 § 1 (7) and
45 § 4 (2) of LMS had been met. Once the administrative courts had established
the lawfulness of the legal grounds for the applicant’s discharge, other
circumstances, including those related to the military service of four other
military officers relied on by the applicant, were no longer relevant to the
examination of his case. Lastly, the Government maintained that the servicemen
and servicewomen the applicant had described in his request as not discharged
despite their age, actually served within the system of national defence in
compliance with the provisions of domestic law, including the provisions
establishing the allowed age (see paragraphs 36-40 above).
B. The Court’s assessment
1. Admissibility
. The
Court first turns to the Government’s objection to the effect that Article 6 §
1 of the Convention is not applicable to the applicant’s complaint about his
dismissal from professional military service. It reiterates however that in order for the respondent State to be able to rely before the
Court on the applicant’s status as a civil servant, or in this case as a
professional soldier, to exclude the protection embodied in Article 6, two
conditions must be fulfilled. It will be for the respondent Government to
demonstrate, firstly, that a civil servant applicant does not have a right of
access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant
is justified (see Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II;
also see Igor Vasilchenko v. Russia, no. 6571/04, § 46, 3 February 2011).
In the
present case it is common ground that the applicant served in the army on the basis
of a professional military service contract concluded between him and the
Ministry of Defence on 5 August 2002. It is true that the first paragraph
of Article 48 of LMS excludes disputes regarding acceptance for military
service or extension of military service contracts. Nevertheless, the Court
observes that the applicant’s dispute concerned his dismissal from professional
military service. Nor was the matter of his dispute the extension of his
contract. In fact, he had claimed the right, “civil” in its nature, to continue
professional military service until the expiry of the contract he already had. The
dispute was genuine and serious and the result of the proceedings was directly
decisive for the right in question. It is also plain from the facts that, as
regards his dismissal from the military, the applicant had access to
administrative courts under national law, in accordance with the second
paragraph Article 48 of LMS. Accordingly, Article 6 § 1 is applicable.
. The Court further considers that
this part of the application is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. No other ground for declaring it
inadmissible has been established. Therefore, it should be declared admissible.
2. Merits
. The applicant was dissatisfied that when examining his complaint
of dismissal from the military service on discriminatory grounds the
administrative courts had based their decisions merely on an interpretation of
Article 38 § 1 (7) of LMS and had ignored his repeated requests for access to the
military files of four specific servicemen. On this point the Court observes
that one of the elements of a fair hearing within the meaning of Article 6 § 1
is the right to adversarial proceedings; each party must in principle have the
opportunity to make known any evidence needed for his claims to succeed (see Mantovanelli
v. France, 18 March 1997, § 33, Reports of Judgments and Decisions
1997-II). Moreover, the requirement of “equality of
arms” implies that each party must be afforded a reasonable opportunity to present his case - including
his evidence - under conditions that do not place him at a substantial
disadvantage vis-ŕ-vis his opponent (see, for instance, Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274; Helle v.
Finland, 19 December 1997, §§ 53-54, Reports
of Judgments and Decisions 1997-VIII). The
Court has also held that the effect of Article 6 § 1 is, inter alia, to
place the “tribunal” under a duty to conduct a proper examination of the submissions,
arguments and evidence adduced by the parties, without prejudice to its
assessment of whether they are relevant to its
decision (see Kraska v. Switzerland, 19 April 1993, § 30, Series A no. 254-B, and Van de Hurk v. the Netherlands, 19 April 1994, §
59, Series A no. 288).
That
being so, the Court nonetheless reiterates that it is not within its province
to substitute its own assessment of the facts and the evidence for that of the
domestic courts and, as a general rule, it is for these courts to assess the
evidence before them (see, among many other authorities, Edwards v. the United Kingdom, 16
December 1992, § 34, Series A no. 247-B).
Furthermore, while Article 6 guarantees the right to a fair hearing, it does
not lay down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law. Nevertheless, the
question which must be answered is whether the proceedings as a whole,
including the way in which the evidence was obtained, were fair (see Galstyan,
cited above, § 77).
. Turning
to the circumstances of the instant case, the Court recalls that in his written
complaint to the Vilnius Regional Administrative Court the applicant argued that
he had been discriminated against because of his opinions. He submitted that at
least four other servicemen in his military unit had been allowed to continue serving
after reaching the age of discharge but before the expiry of their contracts.
For the applicant, given that an allegation of discrimination was at the heart
of his complaint, a comparison between his situation and that of those four
other servicemen was indispensable for him to be able to present his grievance
(see paragraph 19 above). The applicant reiterated that request on appeal,
arguing that the lower court’s refusal to order his military commander to
provide evidence related to the service history of those four servicemen had deprived
him of the opportunity to show that he was the only soldier to whom the law had
been applied so rigorously (see paragraph 25 above).
. The
Court further observes that, despite those arguments by the applicant, the
administrative courts limited their examination to the letter of LMS, having examined
whether his discharge from the army had been justified under Article 38 § 7 (1)
thereof, namely because of his age. The Government have acknowledged that once
those courts had established as lawful the applicant’s discharge from
professional military service on that ground, other circumstances, including
those related to the alleged discrimination and those other four servicemen,
were not relevant to the examination of the applicant’s case. The Court cannot
subscribe to this view. Whilst being careful not to substitute its own
assessment of the facts and evidence for that of the domestic courts, the Court
nevertheless considers that the discrimination aspect of the applicant’s
complaint should have been addressed by the administrative courts. Although
those courts were not bound in law to order the applicant’s commanding officer
to produce the evidence he requested and which the applicant was unable to obtain
himself, and notwithstanding whether the military service history of those four
servicemen would have proved the applicant’s point, that evidence was likely to
have a preponderant influence on the assessment of the applicant’s complaint by
those courts (see Mantovanelli, cited above, § 36). The Court strikes
a note of caution in observing that Article 6 § 1 of the Convention obliges courts
to give reasons for their decisions, but cannot be understood as requiring a
detailed answer to every argument (see Van de Hurk, cited above, § 61).
However, given that the applicant had given full details of which specific
evidence he wished to obtain and why it was directly relevant to his complaint
and to his wish to influence the courts’ decision, and considering that at that
stage of the proceedings it was not yet clear whether that
evidence was necessary in order to determine the applicant’s
discrimination claim, the Court finds that the administrative courts’ failure
to assist the applicant in obtaining evidence and to give it consideration, or
at least to provide reasons why this was not necessary, denied the applicant essential
means to argue his case. In disputes concerning civil rights, such as the
present one, such a limited review cannot be considered to be an effective
judicial review under Article 6 § 1 (see, mutatis mutandis, K.M.C. v.
Hungary, no. 19554/11, § 35, 10 July 2012,
and the case-law cited therein).
. In the
light of the above, the Court holds that the proceedings before the
administrative courts (see paragraphs 19-28 above), taken as a whole, did not
satisfy the requirements of a fair and public hearing within the meaning of
Article 6 § 1. There has accordingly been a breach of that provision.
II. ALLEGED VIOLATION OF
ARTICLE 10 OF THE CONVENTION, TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14
. Relying
on Articles 10 and 14 of the Convention, the applicant complained that he was
dismissed from the military for his opinions and in a discriminatory manner.
. The
relevant parts of Article 10 read as follows:
“1. Everyone has the right
to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public
authority and regardless of frontiers...
2. The exercise of these
freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
. Article
14 of the Convention reads as follows:
“The enjoyment of the rights and
freedoms set forth in [the] Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status.”
A. The parties’ submissions
1. The applicant
. The
applicant complained of a violation of his right to freedom of speech. He
maintained that as a serviceman he had been responsible for many years for
giving legal advice to the Commander of the Armed Forces on the question of statutory penalties. His opinion on the
statutory penalties the army imposed on soldiers often did not correspond to
that of others at the Ministry of Defence. The applicant stated that he had made
many proposals with the aim of improving, inter alia, servicemen’s
procedural rights when the new Army Disciplinary Statute was being drafted. As his
superiors and the State President had failed to take his proposals into account,
the applicant had contacted the Kauno Diena daily and expressed his
ideas to the press. The internal inquiry into his communication with the daily
had been started the same day. Even though that inquiry had later been
discontinued by the authorities’ acknowledgement that the applicant had not
violated military discipline, the appeal to Kauno Diena and to the State
President had had direct consequences for the applicant. He was dismissed from
professional military service before the expiry of his contract. Most
importantly, in order to avoid accusations of interference with freedom of
expression, the authorities at the Ministry of Defence chose to dismiss him not
on the ground that he had appealed to the media, but formally, on the basis of Article
38 § 1 (7) of LMS, thus leaving no official trace of injustice. If that
provision had been applied to others in the same manner, several hundred
soldiers would have been dismissed from service, however none of them except
the applicant had suffered the same consequences. The example of four soldiers (R.L.,
V.S., J.Š. and M.I.) he relied on during the administrative court proceedings
confirmed that there were more soldiers who should have been dismissed from the
army, but that this was not done. Lastly, he also challenged as misleading the
two examples provided by the Government (see paragraphs 41 and 42 above).
. The
applicant then asserted that the interference with his right to express his
opinions had no basis in Lithuanian law. Nor was it justified by any of the
grounds listed in Article 10 § 2 of the Convention, because his publicly
expressed criticism over the staff reform had not disclosed any classified
information or posed a threat to the State’s security. The applicant’s
dismissal from professional military service was nothing other than revenge for
his public appeal in the media.
2. The Government
. The
Government maintained at the outset that there had been no interference with
the applicant’s right to freedom of expression, because he had not experienced
any negative effects in relation to the publication in Kauno Diena. They
noted that the majority of cases examined by the Court under Article 10 of the
Convention had involved either final criminal convictions or civil decisions
against a person. In the instant case, however, the internal inquiry into the
applicant’s actions regarding the publication, although opened on the very same
day as that of the publication, 1 March 2006, was discontinued on 22
March 2006 on the ground that the acts committed by him did not constitute a disciplinary
violation of the Statute of Military Discipline because he had acted within the
bounds of his right to impart information, in accordance with Article 21 § 3 of
LMS. A mere internal inquiry into the applicant’s actions, which in itself did
not create any consequences for the applicant, therefore could not be
considered as constituting an interference with the right to freedom of
expression. Even if the Court assumed that the mere opening of an internal
inquiry could be seen as interference, the Government considered that it was authorised
by, inter alia, Article 36 of LMS which establishes certain restrictions
associated with military service, including public expression of disagreement
with policies being implemented by the Government of a democratically elected
State. The opening of the internal inquiry into the applicant’s acts pursued a
legitimate aim “in the interests of national security” and “for the prevention
of disorder”. Lastly, the inquiry was “necessary” and proportionate, given that
the applicant’s criticism of the new Statute of Military Discipline had been
expressed publicly and not internally (see E.S. v. Germany
(dec.), no. 23576/94, 29 November 1995; and Grigoriades v. Greece, 25
November 1997, § 47, Reports of Judgments and Decisions 1997-VII).
. The
Government also considered that, even if the Court did see the applicant’s
discharge from the military as an interference with the exercise of his right
to freedom of expression, that presumption would be incorrect. The Government
categorically rejected any such considerations, because the applicant had been discharged
in accordance with the domestic law for having reached retirement age, and not
because of the criticism he had expressed in the article in Kauno Diena.
The Government also pointed out that in the domestic proceedings concerning his
discharge the applicant had raised his allegation of discrimination only very
briefly, while in essence disputing the interpretation and application of
Article 38 § 1 (7) of LMS. However, having regard to the interpretation of
that provision by the administrative courts in the applicant’s case as well as
in other relevant case-law, the applicant was discharged from the military in
accordance with the domestic law, and there was no ground to allege any
possible discrimination in any regard.
. The
Government further questioned the applicant’s argument that four other
servicemen (R.L., V.S., J.Š. and M.I.) had had to be discharged from the
military because of their age but had nevertheless continued to serve. On this
point the Government referred to the domestic law and facts relating to the service
history of those four officers (see paragraphs 36-40 above). In this connection
the Government also saw it as relevant to provide the Court with two examples which
in their view were analogous to the applicant’s case, where the servicemen were
discharged from professional military service on the ground of their age, despite
the fact that they still had valid military service contracts (see paragraphs 41
and 42 above). Finally, the administrative courts had been consistent in interpreting
Article 38 § 1 (7) of LMS as having the effect that once a
serviceman reached the age of retirement this was an imperative ground to
terminate his military service (see paragraphs 46 and 47 above). Above all, that
interpretation also remained consistent in the applicant’s case.
B. The Court’s assessment
1. Admissibility
. The
Court considers that the applicant’s complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring them inadmissible has been
established. They should therefore be declared admissible.
2. Merits
. The
Court has held on numerous occasions that freedom of expression constitutes one
of the essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual’s self-fulfilment. Subject
to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb; such are the
demands of that pluralism, tolerance and broadmindedness, without which there
is no “democratic society”. Freedom of expression, as enshrined in Article 10,
is subject to a number of exceptions, which, however, must be narrowly
interpreted and the necessity for any restrictions must be convincingly
established (see Vogt v. Germany, 26 September 1995, § 52, Series A no.
323, with further references).
. Article 10 does not stop at the gates of army barracks. It
applies to military personnel as it does to all other persons within the
jurisdiction of the Contracting States. Nevertheless, as the Court has
previously indicated, it must be open to the State to impose restrictions on
freedom of expression where there is a real threat to military discipline, as
the proper functioning of an army is hardly imaginable without legal rules
designed to prevent servicemen from undermining it. It is not, however, open to
the national authorities to rely on such rules for the purpose of frustrating
the expression of opinions, even if these are directed against the army as an
institution (see Grigoriades, cited above, § 45; see also Vereinigung
demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994,
§ 36, Series A no. 302).
The Government argued
that there had been no violation of the applicant’s right to freedom of
expression, because he had not experienced any negative effects from the
publication in the Kauno Diena newspaper. On this point the Court indeed
notes that the internal inquiry into the applicant’s actions regarding that
publication and his address to the State President were terminated on the
ground that the applicant had acted within the boundaries of Article 21 § 3 of LMS,
and no disciplinary sanction was imposed on him (see paragraph 14 above). The
Court therefore considers that, as far as it concerns that inquiry in itself,
in view of its outcome the applicant cannot claim to be a victim of a violation
of the Convention. However, it will nevertheless take that investigation into
account when examining the main issue in the present case, namely whether the
applicant’s military service was terminated solely as a result of the legal
necessity to discharge him because of his age, as the Government claimed, or
whether, as the applicant argued, he was dismissed because of his opinions.
The Court finds that although the sequence of events - the applicant’s
critical remarks in Kauno Diena, the internal investigation into his
actions, a disciplinary penalty for failing to give proper legal advice (see paragraph
15 above) and, eventually, the decision to start the procedure to discharge him
because of his age - assessed in its entirety, might appear to corroborate the
applicant’s version of events, this does not allow the Court to conclude with
certainty that the applicant was punished for his
opinions and that termination of his military service was not simply the result
of a proper application of Article 38 § 1 (7) of LMS (see, by converse
implication, Ivanova v. Bulgaria, no. 52435/99, § 83, 12
April 2007). In previous cases the Court has indeed found
that disciplinary sanction for public remarks (see E.S. v. Germany,
cited above), or even prosecution and conviction of the soldier (see Grigoriades,
cited above, §§ 47-48) had been a clear indication of an
interference with the right to impart ideas, at variance with Article
10 of the Convention. However, in the instant case such tangible indications
are absent. Unlike the facts in Ivanova (§ 84), no new requirements for the applicant’s post, which he did not meet,
had been introduced after the publication in Kauno Diena. None of the
applicant’s superiors in the army had made public statements to the effect that
he should be discharged from the military because of his opinions (see, in
contrast and mutatis mutandis, Kosiek v. Germany, 28 August 1986,
§ 37, Series A no. 105). It is also noteworthy that the obligation
to terminate contracts when the retirement age is reached had been confirmed by
the Supreme Administrative Court in its earlier rulings of 2003 and 2004 (see
paragraphs 46 and 47 above), which preceded the applicant’s case by some three
years and thus illustrate the established practice of the domestic courts.
The
applicant also sought support for his claim of discrimination from the military
service record of four soldiers of his unit - R.L.,
V.S., J.Š. and M.I. He considered that those four
soldiers had been in a similar situation to that of himself, but had been
treated differently. On this point the Court reiterates that Article 14 of the
Convention affords protection against different treatment, without an objective
and reasonable justification, of persons in similar situations (see Hoffmann
v. Austria, 23 June 1993, § 31, Series A no. 255-C, and Vojnity
v. Hungary, no. 29617/07, § 29, 12
February 2013). However, having given due consideration to the facts
(paragraphs 36-40 above), it is the Court’s opinion that such an assertion is
not substantiated. The professional military service histories of those four
servicemen show that each of them was entitled to serve until the expiry of their
contracts, despite the fact that they had reached retirement age, because,
unlike the applicant, they had military specialist codes. Conversely, as the
applicant himself acknowledged during the court proceedings, at the time of his
discharge from the army he had no such status (see paragraphs 19 and 26 above).
. In view of the above, the Court finds that the applicant’s
discharge from professional military service once he had reached retirement age
did not amount to interference with the exercise of his right to freedom of
expression (see Harabin v. Slovakia, no. 58688/11, § 153, 20 November 2012). There has therefore been no violation of Article 10 of the
Convention, taken alone or in conjunction with Article 14 thereof.
III. OTHER ALLEGED VIOLATIONS
OF THE CONVENTION
. Citing Articles
5, 13 and Article 1 of Protocol No. 1 to the Convention, the applicant lastly brought forward a series of grievances which may be
summarised as a complaint that his discharge from the army breached the
principles of liberty and security, caused him pecuniary damage, and was not
examined by the Ombudsman.
. The
Court has examined the remainder of the applicant’s complaints as submitted by
him. However, having regard to all the material in its possession, it finds
that these complaints do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41
OF THE CONVENTION
77. 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
. The applicant
claimed that after his dismissal from the military service before the expiry of
his contract he suffered pecuniary damage, because he received a lower pension.
He asked that the Government be ordered to review the sums paid for his pension
and compensate the unpaid part, or, alternatively, to award him 100,000 euros
(EUR). The applicant further claimed that he had received no salary, food
allowance or housing allowance, which all together were equal to 85,137 Lithuanian
litai (LTL, approximately EUR 24,650). Lastly, the applicant claimed
EUR 100,000 for non-pecuniary damage he had suffered because of the internal
inquiry into his contacts with the media and the courts’ unwillingness to
defend his human rights.
. The
Government considered that the pecuniary and non-pecuniary damage claimed by
the applicant were absolutely unsubstantiated and excessive.
. The
Court does not discern any causal link between the violation found and the
pecuniary damage alleged; it therefore rejects this claim. On the other hand,
it awards the applicant EUR 6,000 in compensation for
non-pecuniary damage.
B. Costs and expenses
. The applicant
made no claims for costs and expenses. The Court therefore makes no award under
this head.
C. Default interest
. 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant’s
complaints under Articles 6, 10 and 14 admissible and the rest of the
application inadmissible;
2. Holds that there has been
a violation of Article 6 § 1 of the Convention;
3. Holds that there has been
no violation of Article 10 of the Convention, taken alone or in conjunction
with 14 thereof;
4. Holds
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2 of the
Convention, EUR 6,000 (six thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into Lithuanian
litai at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amount at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points;
5. Dismisses the remainder
of the applicant’s claim for just satisfaction.
Done in English, and notified in writing
on 12 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido Raimondi
Registrar President
