The subsidiary character of the Convention system - with reference to L.
case v. Lithuania, No. 27527/03.
Dr. Danutė Jočienė*
1. Preface.
2. Subsidiary character of the Convention system.
3. Some Decisions and Judgments against Lithuania and Latvia before the Court with
reference to the subsidiary character of the Convention system.
4. L. case v. Lithuania, No. 27527/03 - a good example of the direct consequences of the
judgment of the Strasbourg Court to the domestic judicial system.
5. Final remarks.
1. Preface.
Dear Chief Justice of the Supreme Court of Latvia Mr. Ivars Bičkovičs, dear
colleagues Judges from the Latvian Supreme and Constitutional Courts and all other courts,
including my fellow colleagues from the Lithuanian Supreme Court, Ladies and Gentlemen.
First of all, I would sincerely like to thank the Latvian Supreme Court for its kind
invitation to this Conference. Such direct dialogue between the judges from the European
Court of Human Rights and the domestic courts’ judges is the most welcome form of effective
cooperation in protecting human rights both at domestic and international levels. I note that
according to the Convention, the national authorities and especially the courts have the prime
responsibility to guarantee its fundamental rights and freedoms at national level. They must
therefore find all necessary means in order to prevent and redress sufficiently human rights
violations at domestic level.
I’ll speak today about the subsidiary character of the Convention system with
reference to the L. case v. Lithuania, which has raised interesting legal discussions as regards
the judicial activism/judicial discretion of the Court, possibility of ultra vires acts or even
more, the interference into domestic legislative powers.
Being a Judge of the Court I will observe the requirements of the Judicial Ethics of
Judges not disclosing any information concerning the secrecy of deliberations.
2. Subsidiary character of the Convention system.
The European Court of Human Rights (afterwards – the Court, the Strasbourg Court or
the ECHR) is one of the main bodies of the Council of Europe, the international regional
organisation created in 1949. The main purpose of the Council of Europe has been indicated
as the promotion and protection of fundamental human rights and strengthening of the rule of
law1. The Court is the international judicial body dealing mainly with the individual
*Judge of the European Court of Human Rights, Vice President of the Section II of the Court, Former Associate
Professor of Vilnius University Faculty of Law, (Ph.D.) Vilnius University.
1
applications submitted under Article 34 of the Convention. The Convention system, created in
1950, in its earlier years had been composed of two organs: the quasi-judicial Commission
and the Court; 2 mentioned bodies had functioned until 1998, when Protocol No. 11 entered
into force, abolishing the Commission. Under Article 19 of the Convention as amended by
Protocol 11 the single permanent European Court of Human Rights was established. Its task is
to ensure the observance of the engagements undertaken by the State Parties under the
Convention.
Article 46 of the Convention declares the binding force of the Court’s judgments - the
States must execute the final judgments of the Court in any case to which they are parties.
The States Parties and the Court share responsibility for ensuring the effective
implementation of the Convention, underpinned by the fundamental principle of subsidiarity.
However, notwithstanding the principle of subsidiarity, on which the whole Convention system
is based, the large number of cases pending in Strasbourg (and especially numerous repetitive
cases) caused damage to the effectiveness and credibility of the Convention system. Therefore
a question arises which actions should be taken in order to ensure the effectiveness of the
Convention system in the future. These issues were deeply discussed by the States in the
Ministerial Conference on the Future of the ECHR in Interlaken in February 2010, where the
Interlaken Declaration and the Action Plan was adopted2. Furthermore, the same discussions
continued in Izmir Conference in April 2011, and finally - in Brighton Conference in April
20123. The Declaration of the Brighton Conference requires States Parties once again to take
all effective measures at domestic level to prevent violations; furthermore national courts and
tribunals are required to take into account the Convention and the case law of the Court in
conducting proceedings and formulating judgments 4.
The statistical data indicate clearly the mounting pressure to the effectiveness of the
Convention system.
At the end of 2011, more than 151,600 allocated applications were pending before
the Strasbourg Court.
Four countries account for over half (54,3%) of its docket:
26,6% of the cases are directed against Russia;
10,5% of the cases concern Turkey;
9,1% Italy and 8,1% Romania.
Adding Ukraine (6,8%) and Serbia (4,5%), six countries account for almost two-thirds
of the caseload (65,6%)5. Against Lithuania 586 cases were pending before the Strasbourg
Court by the end of 2011, against Latvia – 552 cases6.
1
A. H. Robertson. Human Rights in Europe. 2-nd ed. (Manchester University Press, 1977), p. 2-3. See also
Jacobs and Waite. European Convention on Human Rights. Third Editon. Clare Ovey and Robin C. A. White.
(Oxford University Press), p. 1-4.
2
http://www.echr.coe.int/ECHR/EN/Header/The+Court/Reform+of+the+Court/Conferences/
3
See Footnote No. 2.
“7. The full implementation of the Convention at national level requires States Parties to take effective
measures to prevent violations. All laws and policies should be formulated, and all State officials should
discharge their responsibilities, in a way that gives full effect to the Convention. States Parties must also provide
means by which remedies may be sought for alleged violations of the Convention. National courts and tribunals
should take into account the Convention and the case law of the Court. Collectively, these measures should
reduce the number of violations of the Convention. They would also reduce the number of well-founded
applications presented to the Court, thereby helping to ease its workload”. See the Internet page of the ECHR http://www.coe.int/en/20120419-brighton-declaration/
4
5
6
Annual report of the ECHR, 2011. Council of Europe, P. 13.
See footnote No. 5. P. 152.
2
Latvia and Lithuania have similar backload - totally 57 judgments were adopted against
Latvia, finding at least one violation in 47 judgments, no violations were found in 7 cases
against Latvia. Against Lithuania, totally 75 judgments were adopted, in 61 judgments at least
one violation was found, in 7 cases no violations were established7 - the situation of our two
countries seems to be similar.
Even the Court has increased its working and organisational capacities by adopting the
pilot judgment procedure, priority policy of cases, introducing the single judge system under
provisions of new Protocol 14, which once again amended the Convention*, granting the new
powers to the Three Judges’ Committees, adopting the policy concerning the unilateral
declarations, i.e., the Court is not able to deal with all pending cases within the reasonable
time; this situation is a paradoxical one, as the Strasbourg Court requires the national courts to
examine the cases within the reasonable time (Article 6 of the Convention), but the same
Court is not able to observe this requirement in its own practice.
That overloading can be explained, according to the Former President of the Court
Jean-Paul Costa, by two phenomena. First, certain applicants lodge applications which have
no prospect of success at all but still need to be examined. Secondly, the Court has dealt with
a large number of repetitive cases, admittedly well-founded, but which can be disposed of at
national level by domestic courts according to the principles developed in the Strasbourg
Court’s jurisprudence. [...]. Hence [there is] the need to encourage subsidiarity and solidarity
between domestic systems and the European mechanism [...]8.
The same conclusion followed clearly from the Declaration of the Interlaken
Conference (2010) stressing the subsidiary nature of the supervisory mechanism established
by the Convention; and also indicating the fundamental role of national authorities, i.e.,
governments, courts and parliaments, to guarantee and protect human rights at the national
level9. The Brighton Conference (2012) has also affirmed the strong commitment of the States
Parties to fulfil their primary responsibility to implement properly the Convention at national
level.
Under the well established jurisprudence of the Court it’s clear that under Article 1 of
the Convention the primary responsibility for implementing and enforcing the rights and
freedoms guaranteed by the Convention is laid on the national authorities. The machinery of
complaint to the Court is thus subsidiary to national systems safeguarding human rights. This
subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention 10. The Court
can and should intervene only where the domestic authorities failed in that task; consequently,
subsidiarity in this context is a kind of “complementary subsidiarity”, where the Court’s
7
See Footnote No. 6. P. 160.
*The Text of Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoma,
amending the control system of the Convention and Explanatory Report to it. Strasbourg, 13 May 2004, can be
found In - Applying and supervising the ECHR. Guaranteeing the effectiveness of the European Court of Human
Rights. Collected texts. Council of Europe, 2004. P. 16-51.
8
The Foreword of Jean-Paul Costa, President of the European Court of Human Rights. Annual Report 2008
(Provisional Editon. European Court of Human Rights, 1959-50-2009), pp. 5-6. See also: Анисимова Н.В.
Принцип субсидиарности в европейском праве: проблемы и перспективы применения. М.: «КОМТЭК»,
2005. С. 7-10. See also more about the subsidiarity: Jočienė D., “The Subsidiary Character of the System of the
European Convention on Human Rights with Reference to Cases against Lithuania”. Baltic Yearbook of
International Law. Vol. 9, 2009, P. 1-46.
9
See Internet page of the ECHR:
http://www.echr.coe.int/ECHR/EN/Header/The+Court/Reform+of+the+Court/Conferences/
10
Scordino v. Italy, [GC], 29 March 2006, ECHR, no. 36813/97, para. 140. See also Kudla v. Poland, 26
October 2000, ECHR, no. 30210/96, Reports of Judgments and Decisions 2000-XI, § 92.
3
powers of intervention are confined to those cases where the domestic institutions are
incapable of providing the effective protection of the rights guaranteed by the Convention11.
The basis for the principle of subsidiarity can be found in the Latin terms – subsidium
– help, supporting; and subsidiaries – reserved, subsidiary, substitute12. It means that the
Convention system plays only the subsidiary/secondary role in guaranteeing the fundamental
rights at national level; the main actors remain there the national authorities and especially the
national courts and tribunals.
In the context of the Court two types of the subsidiarity could be identified:
- substantive subsidiarity;
- procedural subsidiarity.
Substantive subsidiarity governs relative responsibilities for decision-making and
assessment; therefore the procedural subsidiarity governs the working relationship between
the Court and national authorities13. Article 1 of the Convention requesting the State Party to
the Convention to ensure to everyone the rights and freedoms enshrined in the Convention
within their jurisdiction must be applied both to the legislative branch of the State (i.e., to
enact laws in conformity with the Convention) and also apply to the executive (i.e., to apply
those laws in a manner compatible with the Convention)14.
In the case Sisojeva and Others v. Latvia15 the Court reiterated once again that, “in
accordance with Article 19 of the Convention, its sole duty is to ensure the observance of the
engagements undertaken by the Contracting Parties to the Convention. In particular, it is not
its function to deal with errors of fact or law allegedly committed by a national court or
to substitute its own assessment […] unless there is a clear evidence of arbitrariness (see
Sisojeva and Others v. Latvia [GC], no. 60654/00, § 89, ECHR 2007-II).
In the same Latvian judgment the Court reiterated further: “[…] The Convention does
not lay down for the Contracting States any given manner for the effective implementation of
the Convention at national level. The choice as to the most appropriate means is a matter for
the domestic authorities, primary the domestic courts, who […] are better placed to assess all
the possibilities and resources afforded by their respective domestic legal systems, bearing of
course in mind that the Convention system “guarantees not rights that are theoretical or
illusory but rights that are practical and effective”16.
The required practical effectiveness of the rights guaranteed under the Convention has
also some impact on the principle of subsidiarity and can limit its scope (see, for example, the
case Christine Goodwin v. the United Kingdom, No. 28957/95, 11 July 2002, §§ 73-75 as
regards the legal recognition of the changed gender). Furthermore, the Court has also a right
to use in its own practice the evolutive approach towards the Convention rights, i.e., to
interpret the Convention in the present day conditions taking into account the new possible
social, scientific and technical developments (see, for example, the case Bayatyan v. Armenia,
[GC], No. 23459/03, §§ 58-70, 7 July 2011; see also the dissenting opinion of Judge
Gyulumyan attached to this judgment), where the Court decided to change its jurisprudence
concerning the applicability of Article 9 as regards the military service objectors based on
religious grounds).
11
See Interlaken Follow-up, the Principle of Subsidiarity, Note of the Jurisconsult, P. 2 http://www.echr.coe.int/NR/rdonlyres/D932C687-6805-4C0B-8828EE7862873D0D/0/Interlaken_followup__Subsidiarity.pdf
12
Современный словарь иностранных слов. М.: Русский язык, 1992; Крысин Л.П. Толковый словарь
иноязычных слов. М.: Русский язык, 1998.
13
See Footnote No. 11. P. 6.
14
See Footnote No. 11, P. 5.
15
Sisojeva and Others v. Latvia [GC], 15 January 2007, ECHR, no. 60654/00, Reports of Judgments and
Decisions 2007-II, §§ 89-90.
16
Imbrioscia v. Switzerland, 24 November 1993, ECHR, no. 13972/88, Series A no. 275, p. 13, para. 38.
4
One more practical manifestation of the substantive aspect of subsidiarity is the
margin of appreciation doctrine what was deeply discussed in the Brighton Conference. As
stated in its Declaration:
“11. The jurisprudence of the Court makes clear that the States Parties enjoy a margin of appreciation in how
they apply and implement the Convention, depending on the circumstances of the case and the rights and
freedoms engaged. This reflects that the Convention system is subsidiary to the safeguarding of human rights at
national level and that national authorities are in principle better placed than an international court to evaluate
local needs and conditions. The margin of appreciation goes hand in hand with supervision under the Convention
system. In this respect, the role of the Court is to review whether decisions taken by national authorities are
compatible with the Convention, having due regard to the State’s margin of appreciation”.
The President of the Court Sir N. Bratza in his speech during the Brighton Conference
(2012) has also indicated as regards the proposals to define/reinforce this notion that “[…] the
doctrine of margin of appreciation is a complex one, […] we do not dispute its importance
[…], but it’s a variable notion which is not susceptible of precise definition […]”.
Some practical examples from the Court’s case law concerning above mentioned
issues:
In the case Sukhovetskyy v. Ukraine, which concerned the elections rights under
Article 3 of the Protocol 1 (the required electoral deposit), the Court reiterated once again the
subsidiary role of the Convention, stating that national authorities are better placed than an
international court to evaluate local needs and conditions. In matters of general policy, on
which opinions within a democratic society may reasonably differ, the role of the domestic
policy-maker should be given special weight (see Hatton and Others v. the United Kingdom
[GC], no. 36022/97, § 97, ECHR 2003-VIII)17. However, this margin of appreciation left to
the States goes hand in hand with European supervision. The Court’s role therefore is to
ascertain whether the discretion afforded to States is not being overstepped, in order not to
impair very essence of the rights at stake and still to guarantee their effectiveness.
Therefore according to the Court’s well-established jurisprudence, the domestic
authorities are better placed to assess the practical possibilities of the effective
implementation of the Convention’s standards at national level. The Convention machinery,
being only of subsidiary character, should help the national systems/courts to implement the
Convention standards in the most appropriate way.
The subsidiary character of the machinery of complaint to the Court can be clearly
seen in Articles 13 and 35 § 1 of the Convention (so called “procedural subsidiarity”). Article
13 enables the national authorities to provide for at national level an effective remedy in
order to redress a violation of the Convention rights; Article 35 § 1 sets out the rule on
exhaustion of domestic remedies at home before submitting a complaint to Strasbourg18,
which must be sufficient, accessible and effective in practice.
As regards the effective remedy to be exhausted under Article 35 § 1 of the
Convention in my country, I would like to pay your attention to two Lithuanian cases in
17
Sukhovetskyy v. Ukraine, No. 13716/02, judgment of 28 March 2006, § 68. As regards the general
policy/State’s margin of appreciation issue see: Stübing v. Germany, No. 43547/08, judgment of 12 April 2012,
(No viol. of Art. 8), the Court analysing the proportionality and necessity of the applicant’s criminal conviction
for an incestuous relationship with his younger sister decided that (§ 60): “ 60. Where, however, there is no
consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or
[…], particularly where the case raises sensitive moral or ethical issues, the margin will be wider. By reason of their direct
and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than
the international court to give an opinion, not only on the “exact content of the requirements of morals” in their country, but
also on the necessity of a restriction intended to meet them (see, among other authorities, A, B and C, cited above, § 232, and
Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24 )”
18
Selmouni v. France [GC], 28 July 1999, ECHR, no. 25803/94, Reports of Judgments and Decisions 1999-V, §
74.
5
Strasbourg - Jankauskas v. Lithuania case19, where the Strasbourg Court accessed the
progressive development of the Lithuanian administrative courts’ system created in 1999 and
decided that already in 2003 these courts had become the effective remedy concerning the
conditions in prisons and other penitentiary issues20. The Court differed in substance from its
previous position adopted in Valašinas v. Lithuania case (Decision, no. 44558/98, 14 March
2000) in 2000 that at this time there was no need to exhaust such remedy, which was not
effective under Article 35 of the Convention.
In the Lavents v. Latvia case (No. 58442/00, judgment of 28 November 2002) the
Court indicated that even accepting the fact that the procedure was still pending before the
Appeal Chamber of the Supreme Court of Latvia at the time of examination of the case in
Strasbourg, the Government of Latvia had not raised any issue as regards the inadmissibility
(see § 57), therefore the Strasbourg Court could continue the examination of the case. Such
position of the Court, in the Author’s knowledge, had raised a lot of discussions in Latvia
concerning the principle of subsidiarity.
Another interesting example as regards Latvia - in a large number of cases* that
concerned the length of pre-trial detention (Article 5 § 3) the Court had held that the
applicants did not need to appeal against orders extending their pre-trial detention to a higherlevel court because the higher-level courts essentially only repeated the reasoning of the
lowel-level courts (see among many other authorities, the case Vogins v. Latvia, No. 3992/02,
judgment of 1 February 2007, §§ 30-3121, the case Gasiņš v. Latvia, No. 69458/01, judgment
of 19 April 2011, § 60 and many other cases). That was the case until the old Code of
Criminal Procedure was replaced by a new Law of Criminal Procedure. With regard to the
procedure under the latter The Strasbourg Court finally found that the applicants have a prima
facie obligation to appeal to the higher court (see Dergačovs v. Latvia, No. 417/06, Decision,
§§ 31-37). It can be said that such new remedy introduced by the Latvian legislator as regards
the length of detention complaints and correctly applied by the Latvian courts was a efficient
reaction to the Court's numerous judgments in that respect.
Lithuania as many other Convention countries has been suffering from the problem of
the length of proceedings. No effective remedy exists in Lithuania for the time being
notwithstanding the fact that many judgments have been adopted against Lithuania finding a
violation of Article 6 of the Convention22. The European Court has clearly rejected the
Jankauskas v. Lithuania, 16 December 2003, ECHR, no. 59304/00, “Law“ Part, para. 1.
See also the Decision as to the Admissibility in the case Živulinskas v. Lithuania (no. 34096/02, 12 December
2006, LAW part, § 3), where the Court rejected the applicant’s complaint about the search of his belongings, as
the applicant had not specifically contested the lawfulness of the search during the administrative proceedings.
19
20
* Sincere thanks for information about the Latvian cases to the Court’s lawyer Kristaps Tamuzs.
In this case the Court reiterated […] “30. S'agissant de la période comprise entre le 26 janvier et le 10 mai
2000, la Cour reconnaît que le requérant n'a pas fait usage du recours prévu à l'article 222-1 du code de
procédure pénale. Cependant, elle rappelle qu'elle a examiné plusieurs affaires dirigées contre la Lettonie, dans
lesquelles les requérants avaient effectivement recouru à cette voie (voir, mutatis mutandis, les arrêts Svipsta et
Kornakovs, précités, ainsi que Lavents c. Lettonie, no 58442/00, 28 novembre 2002, Freimanis et Līdums
c. Lettonie, no 73443/01 and 74860/01, 9 février 2006, et Moisejevs c. Lettonie, no 64846/01, 15 juin 2006). Dans
chacune de ces affaires, la Cour a conclu à l'existence d'une violation de l'article 5 § 3 de la Convention,
notamment parce qu'au cours de toute la période de détention, la juridiction d'appel avait utilisé le même
raisonnement stéréotypé, reproduisant les critères énumérés par la loi mais ne précisant pas de quelle manière ils
entraient en jeu dans le cas d'espèce […]. See also the case Čistiakov c. Lettonie, no. 67275/01, §§ 46-51,
8 février 2007.
21
See Maneikis v. Lithuania, no. 21987/07, § 21, 18 January 2011; see also Šulcas v. Lithuania, no. 35624/04,
§§ 60 and 62, 5 January 2010.
22
6
argument of the Lithuanian Government that the possibility of claiming damages for the
excessive length under Article 6.272 of the new Civil Code (a right to claim damage caused
by the wrongful actions of the authorities) had already become an effective remedy under
Article 35 § 1 of the Convention23. Therefore I take the opportunity to address once again this
problematic aspect to my fellow judges from the Supreme Court of Lithuania. In my personal
opinion, much more active role must have been played by the Lithuanian Supreme Court in
applying and interpreting the mentioned Article 6.272 with regard to the principles established
in the Court’s case law under Article 6, stating clearly that the mentioned possibility had
acquired the level of legal certainty and could sufficiently redress the violations as regards the
length of the proceedings.
Very interesting subsidiarity aspect can be derived from the case Lenkauskienė24,
where the Strasbourg Court had finally accepted the Government’s position that the applicant
failed to exhaust her cassation appeal properly, as she had raised no points of law concerning
the lawfulness of the use of criminal conduct simulation model against her, raising only
factual matters as regards her conviction. The case was rejected under Article 35 §§ 1 and 4 of
the Convention. The Court left the primary duty to the national courts to interpret and apply
their domestic law.
Such duty to resolve the human rights problems at national level by the national
authorities was also appreciated by the Court in the case Kaftailova v. Latvia [GC] (No.
59643/00, Judgment/Striking out, 7 December 2007, §§ 53-55) concerning the regularisation
of the applicant’s personal status in Latvia. The Court considered that the regularisation
arrangements proposed by the Latvian authorities constitute an adequate and sufficient
remedy for the applicant’s complaint under Article 8 of the Convention, therefore this
complaint can be considered to be “resolved” under Article 37 § 1 (b). The same line of the
Court’s reasoning had been hollowed in the case Pundurs v. Latvia (No. 43372/02, Decision
of 20 September 2011), where the applicant complained about the banned access to court to
claim compensation for damage caused by a traffic accident. The Court rejected the
application as inadmissible, as the applicant had had the necessary information about the
perpetrator in order to lodge a civil claim against him. The Court also observed (see § 35) that
under Latvian law in force at the material time the outcome of the criminal proceedings might
not be considered determinative for the success of civil proceedings (see Blumberga v. Latvia,
no. 70930/01, § 68, 14 October 2008). Besides, according to the domestic law, a right to claim
damages is an independent and justiciable right, therefore, in case of damage everyone is
entitled to judicial protection and compensation25.
The primary role to interpret the domestic law by national courts was also recognised
by the Court in the case Kuolelis, Bartoševičius and Burokevičius v. Lithuania26, where the
applicants, former leaders of the Lithuanian Communist Party, were convicted for anti-state
activities. They were complaining under Article 7 of the Convention that they had been
convicted for acts which at that time could have been foreseeable as criminal offences neither
under domestic nor international law. The Court ruled out that that it is not its task to rule on
the applicants’ individual criminal responsibility, that being primarily a matter for the
assessment of the domestic courts. The Court found (see §§ 120-121 of the judgment) that the
Baškienė v. Lithuania, no. 11529/04, 24 July 2007, ECHR, §§ 59-74.
Lenkauskienė v. Lithuania, 3 November 2005 and 20 May, ECHR, no. 6788/02.
25
See also some other cases against Latvia: the Vikulov and Others (no. 16870/03, Final Decision of the
Admissibility of 31 August 2006) as concerns the analysis of the admissibility of the Article 8 complaint; the
analysis concerning Article 5 § 1 in the case Shannon (no. 32214/03, no viol. of Article 5 § 1); the analysis of
Protocol 1 Article 1 issue in the case Blumberga (no. 70930/01, no viol. of Article 1 of Protocol I); the recent
judgment in the case Krivošejs (no. 45517/04, no viol. of Article 3 as regards medical assistance in prison), etc.
26
Kuolelis, Bartoševičius and Burokevičius v. Lithuania, 19 February 2008, ECHR, nos. 74357/01, 26764/02
and 27434/02, para. 63-81, 116-122.
23
24
7
applicants must have been aware, as leading professional of the great risks they were running
in maintaining their activities in the Lithuanian Communist Party, and concluded that their
conviction was ultimately based on Articles 68 and 70 of the Criminal Code, as amended on
10 November 1990, and by that time, in the Court’s view, the political will of the new
Lithuanian Government was clearly established.
The same Court’s position approving the domestic courts’ application of the laws (in
this case – International law) can be found in Kononov v. Latvia case27 where the Strasbourg
Court shared the opinion with the Latvian courts and found that the applicant's conviction for
war crimes did not constitute a violation of Article 7 § 1 of the Convention. In the case the
applicant was complaining that he had been the victim of the retrospective application of
criminal law, as the acts for which he was convicted in Latvia did not, at the time of their
commission in 1944, constitute a criminal offence. The Strasbourg Court recalled the positive
duty of the State under Article 2 of the Convention to prosecute criminal offences drawing it
from the laws and customs of war. The States must take appropriate steps to safeguard the
lives of those within their jurisdiction by putting in place effective criminal law provisions to
deter the commission of offences which endanger life. Accordingly, the applicant's
prosecution (and later conviction) by the Republic of Latvia, based on international law 28 in
force at the time of the impugned acts and applied by the Latvian courts, cannot be considered
unforeseeable as the applicant's acts at the time of their commission constituted offences
defined with sufficient accessibility and foreseeability by the laws and customs of war.
However, the Strasbourg Court does not always share the same approach towards the
application and interpretation of the laws made my national courts. In Ramanauskas v.
Lithuania29 concerning the use of the criminal conduct simulation model against the applicant
(and some follow-up cases30) - the Court decided that the applicant’s complaints as regards
the incitement to commit a crime and legality of the application against him the criminal
conduct simulation model must have been much more deeply and thoroughly examined by the
Lithuanian courts; subsequently, not allowing the use of evidence which had been obtained as
a result of the police incitement. Therefore the Strasbourg Court found a violation of the
fairness of the proceedings, awarding the applicant who was a public prosecutor EUR 30,000
for non-pecuniary damage. The Court differed in its position as regards Article 41 award in
the case Malininas v. Lithuania (1 July 2008, ECHR, no. 10071/04), concerning the same
subject matter, where no award under Article 41 was given leaving the possibility to request
the reopening of the case. Such extremely different position in the Court’s practice under
27
Kononov v. Latvia [GC], No. 36376/04, 17 May 2010, § 143, §§ 241-245.
See Footnote No. 24, § 40 of the judgment - By judgment of 28 September 2004 the Supreme Court Senate of
Latvia dismissed the applicant's appeal stating that […] the court of appeal applied the Conventions, namely the
Geneva Convention of 12 August 1949 .., and [its] Protocol Additional of 8 June 1977 ..., to the war crime which
V. Kononov was accused of, irrespective of when they entered into force. [This is consistent] with the United
Nations Convention of 26 November 1968 on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity. [The court of appeal stated] that the Republic of Latvia, which had been occupied by
the USSR, had not been able to take a decision [to that end] earlier. By referring to the principle of the nonapplicability of statutory limitation, the court of appeal complied with the obligations arising under the
international treaties and held the persons guilty of committing the offences concerned criminally liable
irrespective of the date they were perpetrated […]. […] Since the judgment characterised the violation of the
laws and customs of war of which V. Kononov was accused as a war crime within the meaning of the second
paragraph, point (b), of Article 6 of the Charter of the International Military Tribunal for Nuremberg ..., and, ...
by virtue of the aforesaid United Nations Convention of 26 November 1968 ..., war crimes ... are not subject to
statutory limitation, ... the Senate finds that his acts were correctly found to come within Article 68-3 of the
Criminal Code [...].
29
Ramanauskas v. Lithuania [GC], no. 74420/01, judgment of 28 March 2008, Reports of Judgments and
Decisions 2008. §§ 27, 62-73. In this case the applicant a public prosecutor was convicted for asking of the bribe
in promising some legal services within his position.
30
Malininas v. Lithuania, no. 10071/04, judgment of 1 July 2008, ECHR.
28
8
Article 41 concerning the same type of cases could raise a question as to the Court’s ability to
remain prudent in awarding “just satisfaction”. In my personal opinion, in the circumstances
of those cases, the reopening of the procedure is much more needed in order to correct the
unfairness of the procedure than the financial award. I also note that dissenting Judge Cabral
Barreto in the Malininas case raised a question how the police should have acted differently
to avoid criticism. In his opinion the domestic courts correctly applied the law; therefore no
violation should have been found in the case (see Dissenting Opinion attached to the
judgment).
As regards this Dissenting opinion, a question could be raised whether the Court in
such situations was not acting as a fourth instance court, evaluating anew evidences which
had already been examined by domestic courts? The same question could be related to the
solution found by the European Court in Andrejeva v. Latvia case, where the Strasbourg Court
did not also agree with the conclusions made by the Latvian courts (Andrejeva v. Latvia case
[GC], No. 55707/00, Judgment of 18 February 2009). In this case the Latvian authorities'
refused to take into account the applicant’s years of employment “outside Latvia” while
calculating her pension. According to the Latvian courts, since the applicant's salary had been
paid to her by an employer based outside Latvia, her employment within Latvian territory was
to be treated as an extended business trip and could not give rise to any entitlement to a State
pension for the period in question. The Court decided that such discriminatory treatment is
based exclusively on the consideration that she does not have Latvian citizenship. Any
Latvian citizen in the same position as the applicant would not have any restrictions as regards
the calculation of the working periods abroad. Therefore the applicant was in an objectively
similar situation to persons who had a similar career but who, after 1991, were recognised as
Latvian citizens; and even accepting the broad margin of appreciation enjoyed by the State in
the field of social security, there were no arguments provided to satisfy the Court that there
was a “reasonable relationship of proportionality” under Article 14 of the Convention with
regard to Article 1 of Protocol I (see §§ 85-92).
Different conclusions as regards the domestic courts’ interpretation had been made by
the Strasbourg Court in so called Lithuanian “KGB agents’” cases where the Court decided
that restrictions for the former KGB agents to be employed in the private sector were too
broadly formulated in the Lithuanian Law and violated their rights under Article 14 in
conjunction with Article 8 as regards their private life31. The mentioned Law had never been
amended by the Lithuanian Parliament; therefore the three former applicants re-applied to
Strasbourg for the second time for the period from 2004 until 2009. Those cases have been
communicated to the Lithuanian Government. The Supreme Administrative Court when reexamining these cases at domestic level, suggested the applicants to rely directly on the
European Court’s judgment while searching for an employment in the private sector. But the
suggested possibility was denied by the Supreme Court of Lithuania when re-analysing the
Rainys case. Therefore, I pay attention to the fact that two highest national courts had
interpreted the same domestic law in the totally different way. Those issues will be examined
by the Strasbourg Court once again.
See Sidabras and Džiautas v. Lithuania (nos. 55480/00 and 59330/00, judgment of 1 July 2003, ECHR 2004VIII); Rainys and Gasparavičius (nos. 70665/01 and 74345/01, judgment of 7 April 2005). It should be also
noted that the Strasbourg Court decided in 2009 re-communicate the Sidabras and Džiautas v. Lithuania case
(No. 2) with regard to alleged continuous violations under Article 14 taken with Article 8, because the imposed
restrictions on the applicants to be employed in the private sector were not abolished until 2009 when the Law
ceased its validity. See also the Latvian cases: Adamsons v. Latvia, No. 3669/03, judgment of 24 June 2008 (viol.
of Art. 3 of Protocol I), concerning the restrictions of the former KGB member to participate in the elections; see
also on the same issue Ždanoka c. Lettonie [GC], no 58278/00, §§ 62-63, CEDH 2006-IV, no viol. of Art. 3 of
Protocol I).
31
9
Subsidiarity principle of the Convention system can also be seen in Article 34 of the
Convention as regards the requirement of victim status. In the case Dovgialo v. Lithuania
(Appl. no. 54645/07, lodged on 7 December 2007, rejected by the Committee of Three Judges
on 17 February 2009), the applicant complained about the level of compensation (20 000 LT)
awarded to him by the Lithuanian courts for his illegal detention for 10 months. The European
Court decided that the compensation awarded was a sufficient just satisfaction and the
applicant may not claim to be any longer a victim under Article 34 of the Convention.
4. L. case v. Lithuania, No. 27527/03 - a good example of the direct consequences of the
Strasbourg judgment to the domestic judicial system.
L. v. Lithuania case (no. 27527/03) being the first case against Lithuania to reveal
some legal problems concerning transsexuals and the possibility to change their gender, has
also raised some interesting aspects concerning the subsidiary character of the Convention
system32. The legal background of the case is Article 2.27 § 1 of the new Civil Code of
Lithuania, which provides that an unmarried adult has the right to gender-reassignment
surgery, if this is medically possible. The second paragraph states that the conditions and
procedure for gender-reassignment surgery are established by law.
However, the secondary legislation has never been adopted in Lithuania. The applicant
L. was complaining that he/she had been unable to complete the gender-reassignment surgery
owing to the lack of legal regulation, as no suitable medical facilities appear to be reasonably
available to the applicant to change the gender. The Court found a violation of Article 8, as
regards the uncertainty vis-à-vis the applicant’s private life.
The case raises two interesting points as regards the principle of subsidiarity of
the Convention system:
1. As regards the exhaustion of domestic remedies - the Government submitted that
under Lithuanian law primary legislation (Article 2.27 § 1 of the Civil Code 2001) there was a
possibility to apply to Lithuanian courts. Relying on the Law on the Rights of Patients and
compensation of the damage to their health and the provisions of the Civil Code, the
Government suggested that the applicant could have applied to the various competent
authorities, including courts, regarding impossibility to implement his right to gender
reassignment, besides the right to obtain compensation for allegedly sustained damage. The
national courts relying especially on the Ruling of the Constitutional Court as regards the
general issue of remedies before domestic courts of law (Constitutional Court of Lithuania,
case 34/03, Decision of 8 August 2006, § 6.2.3.3)33, would have been able to deal with the
legal gap and to solve the applicant’s problem. The Court rejected this argument stating that
the relevant provisions of the Civil Code granting the right to adult persons to gender
reassignment surgery, require clearly implementation of it by passing the subsidiary
legislation, which has never been adopted (see para. 25). The Court stated in the admissibility
32
L. v. Lithuania, no. 27527/03, judgment of 11 September 2007, ECHR.
Constitutional Court stated in the mentioned Ruling , inter alia: “... the courts ... which administer justice ...
have to construe law so that they are able to apply it.” Further on, the Constitutional Court found that if the
courts of law were not to interpret the law… “.The right to apply to national courts for the existing legislative
gaps in order to question whether such a gap is in contradiction to the Constitution. No reasonable prospect of
this remedy, no individual complaint to the CC, no individual redress could be achieved when using this remedy
(the Government submits that in such cases when the CC decided on the contradiction between the legislative
gap and the Constitution, this would be more clear to the Parliament to adopt the Law under discussions.
33
10
decision of 6 July 2006 that there was no indication that a domestic procedure in this respect
would have afforded the applicant effective access to a court in theory or in practice, or that
he would have had a reasonable prospect of success to remedy the alleged violations.
Judge Popovič, who dissented on this issue, supported fully the subsidiarity principle
of the Convention system giving the priority the national courts to interpret and apply
domestic laws. According to him, the applicant must have applied to the domestic courts
before lodging an application with Strasbourg Court (see his Dissenting Opinion).
2. Second point as regards the subsidiarity principle – the Court’s strong and even
very exceptional position in the Operative part no. 5 of the judgment obliging the State […] to
pass the required subsidiary legislation to Article 2.27 of its Civil Code on gender
reassignment of transsexuals, within three months of the present judgment becoming final, in
accordance with Article 44 § 2 of the Convention. And only as an alternative, should those
legislative measures prove impossible to adopt within the said time-limit, is the respondent
State ordered to pay EUR 40,000 in respect of pecuniary damage (see § 74 and point 6 of the
operative part).
The Dissenting Judge Fura-Sandström warned the Court that the Court risks acting
ultra vires34. The Convention clearly sets out a division of competences. Under Article 41 of
the Convention, it falls to the Court to afford just satisfaction to the injured party, if necessary.
Having seen the difference from the cases Broniowski v. Poland [GC], no. 31443/96, ECHR
2004-V, and Hutten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006-VIII with a great
number of potential applicants), she concluded that in this case the Court prescribed a general
measure to redress an individual complaint (see her Dissenting Opinion).
The Court’s solution concerning the requirement for the State Party to the Convention
to pass the required legislation could raise a concern as regards the judicial activism/judicial
discretion35 of the Court and its limits - whether it’s in line with the Court’s function under
Article 19 of the Convention and whether such application of Article 41 of the Convention as
regards the individual applicant cannot be regarded as interference into the domestic affairs of
the State (its legislative power). Ineta Ziemele in such circumstances raises an issue of ultra
vires acts – has the Court acted ultra vires, when non of the sources for its competence
provided for such actions? According to her, in any event, the basic question remains […]
whether a court has merely interpreted the law in conformity with the applicable rules of
interpretation or whether it has legislated on the matter not provided for in the law36.
Moreover, under the principles developed by the Court “…neither Article 13 (art. 13)
nor the Convention in general lays down for the States any given manner for ensuring within
their internal law the effective implementation of the Convention"37; the States must remain
free in choosing the means of the laws’ and practice’s compatibility of the Convention […]”.
Being in full agreement with the Court’s position in that case as a sitting judge,
however I have to admit that such situations must remain very exceptional one, providing for
it careful, convincing and reasonable justification.
34
For more details about ultra vires acts see Ineta Ziemele. International Courts and Ultra Vires Acts. Liber
Amicorum Luzius Wildhaber. Human Rights- Strasbourg Views (N.P. Engel Publisher, Strasbourg, 2007), p.
537-556.
35
For more details about the Judicial Discretion see: Барак А. Судейское усмотрение / Пер. с англ. М.:
НОРМА, 1999. С. 10, 120.
36
For more details about ultra vires acts see - Ineta Ziemele. International Courts and Ultra Vires Acts. In://
Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views. N. P. Engel, Publisher. 2007. P. 537556.
37
Scozzari and Giunta v. Italy [GC], 13 July 2000, ECHR, no. 39221/98 and 41963/98, Reports of Judgments
and Decisions 2000-VIII, para. 249).
11
As regards this case, the secondary legislation required by the Court in the Operative
part, has not been adopted even until now. The Lithuanian Government while executing the
judgment opted for the second alternative and paid the applicant 40,000 EUR.
In my opinion, this is one more additional argument showing that the Court has
correctly adopted such strong requirement to the State. Even with such requirement in the
final judgment of the Court, the State is not able /or not willing to adopt the required law.
Notwithstanding this fact, the Court’s judgment in the L. case has played very important role
for the national courts in starting to award the compensation for the gender reassignment
operations performed abroad. The Lithuanian Supreme Administrative Court in its leading
judgment of 29 November 201038 directly relied on the judgment in L. v. Lithuania case
awarding the applicant R. S. 30 000 LT 30.000 LT for non-pecuniary damage. The claim for
pecuniary damage was rejected as the conditions for such award according to the domestic
law were not established. The Supreme Administrative Court decided that the amount of
30,000 LT for non-pecuniary damage in this case was satisfactory, taking into account the fact
that in L. v. Lithuania judgment, where the personal situation of the applicant was much
worse, and the Strasbourg Court awarded to the applicant EUR 5,000 in respect of nonpecuniary damage.
Of course, the outcomes of the mentioned administrative case can still be discussed,
whether it was legally reasonable or not to reject the claim for pecuniary damage. Without
entering into the discussions on this issue, this judgment of the Supreme Administrative court
is very important, showing a clear direct effect of the judgment of the European Court of
Human Rights at national level. Such direct reliance by the national courts on the Strasbourg
Court’s judgments would be the most welcome form of co-operation between two parties
sharing their common responsibility towards the Convention and its effective implementation.
Final remarks:
The States Parties and the Court share responsibility for ensuring the effective
implementation of the Convention. Article 1 of the Convention providing that “The High
Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention”, relinquishes the primary responsibility for
implementing the human rights and freedoms guaranteed by the Convention on the national
authorities. The Convention system is only subsidiary to national systems safeguarding
human rights. The Strasbourg Court must only facilitate the rapid and effective suppression of
a malfunctioning found in the national systems of human-rights protection. Therefore the
open dialogue between the Court and States Parties, especially national courts must be
encouraged; the both partners should understand their respective roles in carrying out the
shared responsibility for applying effectively the Convention.
Furthermore, in my personal opinion, it’s not the duty of the international court to deal
with the large number of repetitive applications stamping hundreds of judgments concerning
the same legal issue (and in majority of cases, quite simple legal issues involved from the
Convention’s perspective, i.e., such as the length of proceedings, non-execution of the
judgments, etc.). The pilot judgment procedure introduced by the Court helps to deal with this
problem; however, in my understanding the States must act much more active at domestic
level solving such legally simple issues by themselves: introducing new effective remedies,
executing carefully Court’s judgments, especially as regards to the general measures to be
taken under Articles 41 and/or 46 of the Convention.
38
Administrative case No. A(858)-1452/2010, judgment of the Supreme Administrative Court of 29 November
2010, Reporting judge I. Jarukaitis.
12
Thank you very much for your attention.
13