ILO Convention;¹ Work of international supervisory bodies

Discrimination on the basis of previous political activities/ Use of international law as a guide for interpreting European human rights law

The Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos (“KGB Act”) included a list of 395 positions within of the Lithuanian branch of the Soviet Security Service and provided that any person who had occupied one of those positions would be classified as a “former KGB officer” unless an exception under Article 3 of the KGB Act applied. Furthermore, Article 2 of the KGB Act stated that a “former KGB officer” was prohibited from applying for employment in specific professional activities in various branches of the private sector from 1999 until 2009.

The claimants were Lithuanian nationals who had previously worked within various positions in the KGB and were deemed to be “former KGB officers” and so subject to the ban under section 2 of the KGB Act.

In separate actions, the claimants commenced proceedings in the Higher Administrative Court of Lithuania, arguing that the decision that the ban applied to them should be overturned. In both cases, the Higher Administrative Court accepted the claims. On appeal, the claimants’ cases were separately heard by the Court of Appeal, and in both cases the Court of Appeal disagreed with the decision of the Higher Administrative Court and confirmed the ban should be applied.

The Applicants then separately issued proceedings against the Republic of Lithuania in the European Court of Human Rights. In short, the claimants alleged that they had lost their jobs and their employment prospects had been restricted because of the KGB Act in breach of Articles 8, 10 and 14 of the European Convention on Human Rights.

In this context, the Court referred to ILO Convention No. 111 and the interpretation of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the Convention in its 1996 General Survey on the subject.

Moreover, the Court referred to the Committee’s observations in respect of similar laws and practices in Bulgaria, Germany and the former Czechoslovakia. It also specifically cited the Committee’s observation in respect of Latvia made in 2003:

“The Committee recalls that requirements of a political nature can be set for particular job, but to ensure that they are not contrary to the Convention they should be limited to the characteristics of the particular post and be in proportion to its labour requirements. The Committee notes that the above-established exclusions by the provisions under examination apply broadly to the entire civil service and police rather than to specific jobs, functions or tasks. The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1(2) of the Convention. The Committee recalls that for measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected of proved to be engaged in which are prejudicial to the security of the State.”²

The Court used the CEACR’s pronouncements to interpret the European Convention of Human Rights law and decided that the ban violated Article 14, taken in conjunction with Article 8, in that it constituted a “disproportionate measure, even having regard to the legitimacy of the aims pursued by the ban”.³ The Court ordered that the Republic of Lithuania pay an award of damages of EUR 7000 to each Applicant as a consequence of this violation.

¹ Discrimination (Employment and Occupation) Convention, 1958 (No. 111) (ratified by Lithuania on 26.09.1994).

² Paragraph 32 of the decision.

³ Paragraph 61 of the decision.