Gintaras Jagminas v. Lithuania. Views of the Human Rights Committee of 24 July 2019 Communication No. 2670/2015.
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Lithuania.
The author claimed that his rights under article 14, paragraphs 1 and 2, and article 25 (c) of the Covenant had been violated. The author considered that the State party violated not only the principle of equality of arms (since a significant part of the evidence was not disclosed to the author), but also the principle of the presumption of innocence within the framework of the general principle of a fair trial in a civil case. In addition, he drew attention to the following - the right to be admitted to public service under general conditions of equality under article 25 (c) of the Covenant includes the right not to be arbitrarily dismissed from public service, and therefore he drew attention to the fact that his right under this provision was also violated.
The Committee's legal position: article 25 (c) [of the International Covenant on Civil and Political Rights] grants the right to be admitted to public service on general conditions of equality... In order to ensure access on general terms of equality, not only the criteria, but also the procedures applied in relation to appointment, promotion, temporary or complete removal from office must be objective and justified. The procedure is not objective or justified if it does not meet the basic requirements of procedural fairness. The Committee also considers that the right to equal access to public service includes the right not to be arbitrarily dismissed from public service (paragraph 8.2 of the Views) (See, for example: Bandaranayake v. Sri Lanka (CCPR/C/93/D/1376/2005), paragraph 7.1.).
The Committee's assessment of the factual circumstances of the case: with regard to the question of reasonableness with regard to paragraph (c) of article 25 [of the International Covenant on Civil and Political Rights], the Committee took into account the author's argument that subparagraph 4 of paragraph 1 of article 18 of the Law on State and Official Secrets clearly provided that operational surveillance of a civil servant leads to dismissal from his position. The contested provision did not require the authorities to establish the criminal responsibility of the person concerned, and after operational surveillance was established, the law did not leave the authorities the opportunity for discretion regarding the measures to be applied. In this regard, the Committee took note of the State party's counterargument, arguing that the absence of a final court decision criminalizing the person in question did not mean that a person wishing to occupy a position requiring access to classified information necessarily enjoyed the trust of the State and that authorized State institutions could not doubt the reliability or the loyalty of this person to the State of Lithuania. The Committee noted that, in the State party's view, the loyalty of a person may be questioned not only on the basis of a criminal conviction, but also as a result of receiving information about the unreliability or negligence of that person in relation to potential security threats. With regard to the issue of objectivity in accordance with article 25 (c), the Committee took into account the State party's argument that article 18, paragraph 1, subparagraph 4 of the Law on State and Official Secrets, prescribing the termination of access to classified information and subsequent dismissal due to being under operational supervision, was not discriminatory and was not applied in a discriminatory manner in this case. The contested provision applies to any person in a similar situation (paragraph 8.3 of the Considerations).
In its assessment, the Committee noted from the very beginning - even if it really considered that subparagraph 4 of paragraph 1 of article 18 of the Law on State and Official Secrets, prescribing the contested intervention on the basis of the fact of operational surveillance, was an objective criterion, since it was applied to any person in a similar situation without any differences, [In fact, the Committee was [rather] faced with the question of whether the provision was reasonable and whether it contained sufficient safeguards against arbitrary implementation. In this regard, the Committee considered it extremely important that the contested provision did not allow the authorities to assess the essential circumstances of a particular case at their discretion, such as the gravity of the offense or the possibility that charges would eventually be proven in court.... The Committee took into account the State party's argument: the very fact of operational surveillance without establishing criminal liability liability may raise doubts about the reliability of a person. The Committee did not dispute this claim, but it is concerned about the following - the law did not allow the authorities to conduct an individual assessment of the validity of such doubts about the reliability of a person in a particular situation, namely, that such doubts necessarily stem from the mere fact of the introduction of operational surveillance. The Committee... He noted that the contested provision did not allow for any alternatives to dismissal in terms of measures taken after establishing the fact that the relevant person was under operational supervision. Therefore, an individual assessment of the relevant case was not carried out. In addition, the law did not allow any corrections to be made if operational surveillance did not lead to the identification of any violations or actions that could really justify monitoring the specified person. The Committee considered that, although the State party had shown that the intervention was prescribed by law and in accordance with its provisions, it had failed to explain whether such an intervention was justified precisely in terms of the necessity and proportionality of the measure taken. At this stage, the Committee stressed the following - the Constitutional Court of Lithuania, by its decision of July 7, 2011, [among other things] and for the above reasons, concluded that the law in question constituted a disproportionate restriction of the right to access public service on an equal basis according to the Constitution. However, there is no information in the case file to suggest that, even if the relevant Lithuanian laws no longer allowed such restrictive measures to be taken, the author's complaints were considered as a result of this decision. The Committee further noted that the State party had failed to demonstrate the existence of any safeguards against abuse of the contested position, which would exclude the possibility of secret surveillance of certain officials on an arbitrary basis and their dismissal from their posts without any reasonable justification (paragraph 8.4 of the Views).
The Committee concluded that the author's dismissal, provided for by law, where there were no guarantees of protection from arbitrariness, combined with a procedure that could not give the author a real prospect of challenging the grounds for his dismissal, could not be considered justified and, therefore, reasonable from the point of view of the legitimate purpose pursued and the requirement of proportionality (paragraph 8.5 of the Considerations).
The Committee's conclusions: The State party violated the author's right to be admitted to public service on general terms of equality. There has been a violation of article 25 (c) of the Covenant.