CASE OF SÕRO v. ESTONIA

1. The case originated in an application (no. 22588/08) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Mihhail Sõro (“the applicant”), on 3 May 2008.
2. The applicant was represented by Ms M. Valge, a lawyer practising in Tartu. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that the publication of information about his service in the former State security organisations had violated his right to respect for his private life in breach of Article 8 of the Convention.
4. On 27 August 2013 the complaint concerning the publication of the information about the applicant ’ s past employment was communicated to the Government and the remainder of the application was declared inadmissible.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1948 and lives in Tartu.
6. Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006 ). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005 ‑ XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006).
7. After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) and the Constitution of the Republic of Estonia Implementation Act ( Eesti Vabariigi põhiseaduse rakendamise seadus ) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience ( süümevanne ) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act ( Seadus süümevande andmise korra kohta ).
8. In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value.
9. On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States ’ Security and Intelligence Authorities which Have Operated in Estonia Act ( Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus ) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question.
10. On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision.
11. As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue.
12. On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service ( Kaitsepolitseiamet ). Information about such persons ’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995.
13. According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB.
14. On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual ’ s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned.
15. On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act ( Okupatsioonirežiimide poolt represseeritud isiku seadus ) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question.
B. Publication of information about the applicant ’ s employment by the KGB
16. From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security.
17. On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice.
18. According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant ’ s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong.
19. On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows:
“ANNOUNCEMENTS OF THE ESTONIAN INTERNAL SECURITY SERVICEabout persons who have served in or co-operated with security organisations or intelligence or counterintelligence organisations of armed forces of States which have occupied Estonia
Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons.
Announcement no. 695 of 27.02.2004
MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver
1. Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989
2. Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991”
20. In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa .”
21. The applicant raised the issue with the Chancellor of Justice ( Õiguskantsler ) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person ’ s place of employment at the time of the publication of the announcement was also made public.
22. The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice.
23. After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public.
C. Court proceedings initiated by the applicant
24. On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier ( okupant ) and an informant ( koputaja ) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him.
25. At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked.
26. By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant ’ s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant ’ s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with.
27. The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa ” and, thus, the notion “former” ( endine ) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” ( okupant ) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant ’ s rights.
28. The Administrative Court found that the applicant ’ s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful.
29. The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR.
30. The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State.
31. By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person ’ s fundamental rights caused by the acts of third parties as the person ’ s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution.
32. The Court of Appeal found as follows:
“10. ... The Chancellor of Justice established in his proceedings that according to the defendant ’ s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations ’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].”
33. In respect of the applicant ’ s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant ’ s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names.
34. On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
35. On 6 February 1995 the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) was passed. It entered into force on 28 March 1995.
36. The Act provided for registration and disclosure of persons who had served in or co-operated with certain security or intelligence organisations of Nazi Germany and Soviet Union, enumerated in the Disclosure Act, between 17 June 1940 and 31 December 1991 (sections 1 to 3). Section 4 of the Disclosure Act stipulated that it applied to staff members of the security or intelligence organisations as well as to persons who had co-operated with these organisations and set forth criteria as to what was to be deemed as the co-operation in question.
37. Section 5 provided that the persons concerned were registered on the basis of a personal confession submitted to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act or on the basis of other available evidence.
38. In case the person concerned did not make a personal confession or knowingly provided false information, information about his service in or co-operation with the security or intelligence organisations was to be made public (sections 6 to 8). Conversely, persons who submitted a personal confession within one year of the entry into force of the Disclosure Act without providing false information were, as a rule, not made public (sections 7(2) and 8(1)) and information concerning them was classified as state secret for fifty years (section 6 of the State Secrets Act ( Riigisaladuse seadus )).
39. Before presentation of the notice for publication the person concerned was notified of the text thereof by the Estonian Internal Security Service (section 8(2) of the Disclosure Act). He or she had the right, within one month of receipt of the notice, to have access to the pertinent documents in the Estonian Internal Security Service and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The burden of proof of the person ’ s service in security or intelligence organisations or co-operation therewith lied with the Estonian Internal Security Service (section 8(4)).
40. In a judgment of 31 January 2003 (case no. 3-257/2003) the Tallinn Administrative Court granted a complaint against a notice of the Estonian Internal Security Service. It found that the complainant ’ s employment in the NKVD ( People ’ s Commissariat for Internal Affairs, a predecessor of the KGB) had not been proven by proper evidence. The court ordered the Estonian Internal Security Service to delete the data on the complainant from its register. This judgment was upheld by the Tallinn Court of Appeal judgment of 8 December 2003 (case no. 2-3/394/2003). The Court of Appeal noted that the burden of proof in the cases falling under the Disclosure Act lied with the Estonian Internal Security Service and emphasised that registration and disclosure of the persons in question could not be based on mere suspicions.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
41. On 27 June 1996 the Parliamentary Assembly of the Council of Europe ( PACE ) adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems. It reads, in so far as relevant:
“ 1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over-regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome.
3. The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of the rule of law, and organised crime instead of human rights. At worst, the result could be the "velvet restoration" of a totalitarian regime, if not a violent overthrow of the fledgling democracy. In that worst case, the new undemocratic regime of a bigger country can present also an international danger for its weaker neighbours. The key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.
4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures.
5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of:
i. demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;
ii. decentralisation, especially at local and regional levels and within state institutions;
iii. demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society;
iv. debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens.
6. This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one ’ s actions.
7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.
8. The Assembly recommends that the prosecution of individual crimes go hand-in-hand with the rehabilitation of people convicted of "crimes" which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force.
9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.
11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.
12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.
13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process ... ”
42. On 25 January 2006 the PACE adopted Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes. It reads, in so far as relevant, as follows:
“ 2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.
3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.
5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).
6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.
7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.
8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.
12. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes.
13. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.
14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.”
IV. RELEVANT EUROPEAN UNION MATERIAL
43. On 23 September 2008 the European Parliament adopted a Declaration on the proclamation of 23 August as European Day of Remembrance for Victims of Stalinism and Nazism. The Declaration reads as follows:
D. whereas the influence and significance of the Soviet order and occupation on and for citizens of the post-Communist States are little known in Europe,
1. Proposes that 23 August be proclaimed European Day of Remembrance for Victims of Stalinism and Nazism, in order to preserve the memory of the victims of mass deportations and exterminations, and at the same time rooting democracy more firmly and reinforcing peace and stability in our continent ... ”
44. On 2 April 200 9 the European Parliament adopted a Resolution on European conscience and totalitarianism. The Resolution reads as follows:
– having regard to the Truth and Justice Commissions established in various parts of the world, which have helped those who have lived under numerous former authoritarian and totalitarian regimes to overcome their differences and achieve reconciliation,
A. whereas historians agree that fully objective interpretations of historical facts are not possible and objective historical narratives do not exist; whereas, nevertheless, professional historians use scientific tools to study the past, and try to be as impartial as possible,
F. whereas the memories of Europe ’ s tragic past must be kept alive in order to honour the victims, condemn the perpetrators and lay the foundations for reconciliation based on truth and remembrance,
G. whereas millions of victims were deported, imprisoned, tortured and murdered by totalitarian and authoritarian regimes during the 20th century in Europe; whereas the uniqueness of the Holocaust must nevertheless be acknowledged,
H. whereas the dominant historical experience of Western Europe was Nazism, and whereas Central and Eastern European countries have experienced both Communism and Nazism; whereas understanding has to be promoted in relation to the double legacy of dictatorship borne by these countries,
I. whereas from the outset European integration has been a response to the suffering inflicted by two world wars and the Nazi tyranny that led to the Holocaust and to the expansion of totalitarian and undemocratic Communist regimes in Central and Eastern Europe, as well as a way of overcoming deep divisions and hostility in Europe through cooperation and integration and of ending war and securing democracy in Europe,
J. whereas the process of European integration has been successful and has now led to a European Union that encompasses the countries of Central and Eastern Europe which lived under Communist regimes from the end of World War II until the early 1990s, and whereas the earlier accessions of Greece, Spain and Portugal, which suffered under long ‑ lasting fascist regimes, helped secure democracy in the south of Europe,
K. whereas Europe will not be united unless it is able to form a common view of its history, recognises Nazism, Stalinism and fascist and Communist regimes as a common legacy and brings about an honest and thorough debate on their crimes in the past century,
3. Underlines the importance of keeping the memories of the past alive, because there can be no reconciliation without truth and remembrance; reconfirms its united stand against all totalitarian rule from whatever ideological background;
4. Recalls that the most recent crimes against humanity and acts of genocide in Europe were still taking place in July 1995 and that constant vigilance is needed to fight undemocratic, xenophobic, authoritarian and totalitarian ideas and tendencies;
5. Underlines that, in order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe ’ s troubled past must be supported, as there can be no reconciliation without remembrance;
6. Regrets that, 20 years after the collapse of the Communist dictatorships in Central and Eastern Europe, access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies, although steps must be taken to ensure that this process is not abused for political purposes;
9. Calls on the Commission and the Member States to make further efforts to strengthen the teaching of European history and to underline the historic achievement of European integration and the stark contrast between the tragic past and the peaceful and democratic social order in today ’ s European Union;
10. Believes that appropriate preservation of historical memory, a comprehensive reassessment of European history and Europe-wide recognition of all historical aspects of modern Europe will strengthen European integration;
13. Calls for the establishment of a Platform of European Memory and Conscience to provide support for networking and cooperation among national research institutes specialising in the subject of totalitarian history, and for the creation of a pan-European documentation centre/memorial for the victims of all totalitarian regimes;
15. Calls for the proclamation of 23 August as a Europe-wide Day of Remembrance for the victims of all totalitarian and authoritarian regimes, to be commemorated with dignity and impartiality;
16. Is convinced that the ultimate goal of disclosure and assessment of the crimes committed by the Communist totalitarian regimes is reconciliation, which can be achieved by admitting responsibility, asking for forgiveness and fostering moral renewal ... ”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
45. The applicant complained that his right to respect for his private and family life had been breached owing to the publication of the information that he had worked as a driver of the KGB. He relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
46. The Government contested that argument.
47. The Government argued that the applicant had not exhausted domestic remedies. He had not contested the notice of 27 February 2004 of the Estonian Internal Security Service neither before the Service nor before an administrative court. Only by contesting the notice could he have prevented publication of the announcement and disclosure of the fact of his service in the KGB. The Government additionally suggested that the fact that the announcement had already been published by the time the court proceedings took place, and that the Chancellor of Justice had expressed his opinion on the matter in the meantime, may have played certain role in the domestic courts ’ assessment of the proportionality of the interference. Although the applicant ’ s subsequent complaint to the administrative courts was admissible, it could not bring along the same consequence as contestation of the notice of 27 February 2004, that is prevention of the disclosure.
48. The applicant submitted that he had not wished to contest the notice by the Estonian Internal Security Service as the fact of his work in the security department had been known to everyone. Negative consequences for him had occurred several months later when the announcement in which he had been called a person who had occupied Estonia had been published on the Internet.
49. As regards the question whether the applicant was required to contest the notice presented to him by the Estonian Internal Security Service in order to comply with the requirement of exhaustion of domestic remedies, the Court has taken note of the domestic case-law which demonstrates that publication of an announcement in Riigi Teataja Lisa could be prevented by contesting the notice in question (see paragraph 40 above). The Court observes, however, that the present case differs from the one referred to above in that in the present case the applicant did not dispute the fact of his service in the KGB. It would appear that the question of whether the publication amounted to a disproportionate interference with the private life of the person falling under the Disclosure Act could be raised either through challenging the Estonian Internal Security Service ’ s initial notice or the actual publication of the announcement in Riigi Teataja Lisa. The Court notes that in the present case, although the applicant did not use the possibility to contest the notice, the administrative courts nevertheless examined on the merits his complaint against the publication of the announcement. Therefore, the Government ’ s argument about non-exhaustion of domestic remedies must be rejected.
50. The Court considers that the Government ’ s additional arguments on non-exhaustion (see paragraph 47 above) are not pertinent. Firstly, the argument about the relevance of the fact that the announcement had been published by the time of the court proceedings does not find support in the Court of Appeal ’ s reasoning (see paragraph 31 above). Secondly, as concerns the fact that the opinion of the Chancellor of Justice – according to which the Disclosure Act was not unconstitutional (see paragraph 23 above) – was known to the domestic courts, it is not for the Court to speculate whether the domestic courts would have decided the applicant ’ s case differently if they would have dealt with it before the Chancellor of Justice gave his opinion. In any event, this opinion was not binding on the courts which were independent in deciding the case. Therefore, the Government ’ s additional arguments on non-exhaustion must also be rejected.
51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
52. The applicant was of the opinion that in the announcement of the Estonian Internal Security Service published in Riigi Teataja Lisa in 2004 he had been considered as a person who had occupied Estonia whereas in the announcements published later, in 2005, the persons in question had not been referred to as persons who had occupied Estonia but rather as persons who had been in the service of the intelligence organisations of the USSR. He argued that it was unclear on the basis of which evidence he was deemed as an occupier and why he was considered to be dangerous. He submitted that “occupier” ( okupant ) was a word that was understood to refer to a serious crime involving conquering the country with the use of arms and exercising occupation therein. At the time when the applicant had worked as a driver for the security department, the activities of this institution had been supervised by the local Communist Party committee where the Prime Minister of the Republic of Estonia of the time of the submission of the observations had held a position of responsibility.
53. The applicant had never concealed his employment in the security department. This fact could be seen from his employment record and no employer had had any problems with that. However, after the publication of the announcement on the Internet under the title referring to an “occupier” he was being considered as an occupier, a traitor, a snitch among his colleagues and acquaintances. He was forced to quit his job and lost his income. The applicant considered that it was wrong and offending to call him an occupier.
54. The Government emphasised that it was not in dispute that from 1980 until 1991 the applicant had worked as a driver in the KGB. Furthermore, the interference with the applicant ’ s right to respect for his private life was in accordance with law and it was necessary in a democratic society in the interests of national security, public safety and for the protection of the rights and freedoms of others. The Government pointed out that for the transfer from a totalitarian regime to a democratic system, Estonia took various measures which, in aggregate, had to ensure the development and security of the democratic system. Criminal liability for crimes against humanity and war crimes committed under the totalitarian regime was established and an obligation to take an oath of conscience was introduced for those seeking the highest offices in the country. The Disclosure Act dealt with the persons who had not committed any crimes but had been employed by or collaborated with the intelligence or counterintelligence authorities of the States which had occupied Estonia. It was found that such persons had to come to terms with their past and not to try to forget, conceal or be silent about it. There was also a significant public interest in the publicity of information relating to the past; this had to guarantee transparency and clarity as well as overall internal peace in the society. Obtaining complete information about the members and agents of the security and intelligence authorities which had operated on the territory of Estonia was also important for the protection of independence and security of the Republic of Estonia. Estonia was lacking the relevant information; such information, including the lists of persons who had worked in the KGB, was in the hands of foreign States. There could be attempts to recruit former staff of the security authorities and make them perform security or intelligence tasks, or they could be subject to blackmailing. Such situation was dangerous and damaging for Estonia. The Government referred to recent cases where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason.
55. The Government also pointed out that persons falling under the Disclosure Act could express their loyalty to the Republic of Estonia by submitting a confession, in which case their data was not disclosed. Moreover, in order to secure protection to the persons concerned, the disclosure was subject to prior judicial review. As regards the question whether it was necessary to also disclose information about persons who, as the applicant, had worked as drivers, the Government argued that the formal job title was not decisive as the drivers could also perform other tasks, especially in rural regions where the applicant had worked. There had even been separate positions formally combining the tasks of the driver with other functions, such as “driver-intelligence officer” dealing with secret surveillance, and for some of the drivers the driver ’ s position had been a step for advancement to the next, “more important” position, like that of an operative agent or intelligence officer. The Government also argued that the Estonian Internal Security Service, having regard to their limited resources, focused on cases which were more important and which could involve real danger to the Republic of Estonia.
56. The Court considers that the publication of the information about the applicant ’ s service in the KGB concerned facts about his personal past that were made available to the public and also affected his reputation. It therefore constituted an interference with his right to respect for his private life (compare Sidabras and Džiautas v. Lithuania, nos. 55480 /00 and 59330/00, §§ 42-50, ECHR 2004 ‑ VIII).
57. The Court further notes that the lawfulness of the interference was not in dispute between the parties. It observes that the interference in question was based on the Diclosure Act that had been adopted by the Riigikogu and published according to the rules in force. Nor has it been disputed that the text of the law was sufficiently clear to enable those affected to foresee the consequences it entailed. The law ’ s accessibility and public awareness of it is also confirmed by the information provided by the Government according to which 1,153 persons submitted a confession to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act in order not to have information about their service in or collaboration with the security and intelligence organisations published. Thus, the Court is satisfied that the impugned interference was lawful for the purposes of the second paragraph of Article 8 of the Convention.
58. As regards the purpose of the interference, the Court notes that the registration and disclosure of the former employees and collaborators of the security and intelligence organisations of the regimes that had operated in Estonia were part of the measures taken to ensure the transparency, clarity and internal peace in the society, as well as to avoid security threats. The Court has also taken note of the cases referred to by the Government where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason (see paragraph 54 above). The Court concludes that the interference in question pursued legitimate aims within the meaning of paragraph 2 of Article 8, namely the protection of national security and public safety, the prevention of disorder as well as well as the protection of the rights and freedoms of others (compare, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 54-55 ).
59. Accordingly, the Court proceeds to the examination of whether the measure was “necessary in a democratic society”. The Court observes in this connection that there is no uniform approach among High Contracting Parties as to the measures to dismantle the heritage of former communist totalitarian systems (see Matyjek v. Poland (dec.), no. 38184/03, § 36, ECHR 2006 ‑ VII ). Different measures have been applied and their application has given rise to a number of cases before the Court concerning a variety of issues such as restrictions on the persons ’ eligibility to stand for elections (see Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006 ‑ IV, and Ādamsons v. Latvia, no. 3669/03, 24 June 2008) or to their employment (see Vogt v. Germany, 26 September 1995, Series A no. 323; Volkmer v. Germany (dec.), no. 39799/98, 22 November 2001; Sidabras and Džiautas, cited above; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, 7 April 2009) as well as lack of access to the information on the basis of which the persons ’ collaboration with former secret services was established (see Matyjek v. Poland, no. 38184/03, 24 April 2007) or reduction of pensions of the persons concerned (see Cichopek and Others v. Poland (dec.) no. 15189/10 and other applications, 14 May 2013). Against this background, the Court turns to the proportionality analysis of the impugned measures in the present case.
60. The Court reiterates that in a number of previous cases it has criticised the lack of individualisation of the impugned measures. Thus, in Ādamsons it considered that the group of persons – former KGB agents – to which the restrictions to stand for elections applied, had been designed in a too broad manner without having regard to the period of service of the persons concerned, specific tasks assigned to them or their individual behaviour (see Ādamsons, cited above, § 125). Similarly, in Žičkus the lack of differentiation in domestic law between different levels of former involvement with the KGB was pointed out by the Court (see Žičkus, cited above, § 33). In addition to the lack of differentiation in domestic law as regards the premises for the application of the restrictions, the Court has also addressed the issue of broadly fashioned restrictions applied to the individuals concerned. Thus, in Sidabras and Džiautas, it noted that with the exception of references to “lawyers” and “notaries”, domestic law contained no definition of the specific private sector jobs, functions or tasks which the applicants were barred from holding (see Sidabras and Džiautas, cited above, § 59).
61. The Court is of the view that the above considerations also apply to the present case. It notes that the Disclosure Act made no distinction between different levels of former involvement with the KGB. It is true that under the applicable procedure the applicant was informed beforehand of the text of the announcement to be published, and given a possibility to contest the factual information contained in it. However, there was no procedure put in place to assess the specific tasks performed by individual employees of the former security services in order to differentiate the danger they could possibly pose several years after the termination of their career in these institutions. The Court is not convinced that there existed a reasonable link between the legitimate aims sought by the enactment of the Disclosure Act and the publication of information about all former employees of the former security services including drivers, as in the applicant ’ s case, regardless of the specific function they performed in these services.
62. The Court also notes that although the Disclosure Act came into force three and a half years after Estonia had declared its independence on 20 August 1991, the publication of the information about the former employees of the security services was stretched over several years. Thus, in the applicant ’ s case the information in question was only published in 2004 – almost thirteen years after the restoration of the Estonian independence. The Court is of the opinion that any threat the former servicemen of the KGB could initially pose to the newly created democracy must have considerably decreased with the passage of time. It notes that it does not appear from the file that any assessment of the possible threat posed by the applicant at the time of the publication of the information was carried out (compare Žičkus, loc. cit. ).
63. Lastly, the Court observes that the Disclosure Act in itself did not impose any restrictions on the applicant ’ s employment. Nevertheless, according to the applicant he was derided by his colleagues and forced to quit his job. The Court considers that even if such a result was not sought by the Disclosure Act, it is nevertheless indicative of the seriousness of the interference with the applicant ’ s right to respect for his private life.
64. The foregoing considerations are sufficient to enable the Court to conclude that the applicant ’ s right to respect for his private life was subject to a disproportionate interference in the present case.
There has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
65. 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.”
66. The applicant claimed 2,556 euros (EUR) – loss of his four months ’ salary – in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage.
67. The Government argued that it had not been proven that the applicant had been forced to quit his work, or that he had lost his income. In respect of non-pecuniary damage, the Government were of the opinion that as the Convention had not been violated, there was no basis for awarding any compensation. In the event that the Court found a violation, such a finding itself would constitute sufficient just satisfaction. If the Court decided to award monetary compensation, the Government left it to the Court to determine a reasonable sum in non-pecuniary damages.
68. The Court considers that the applicant has not submitted any proof to determine the sum of the alleged pecuniary damage. It therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
69. The applicant also claimed EUR 1,508.65 for the costs and expenses incurred before the domestic authorities and before the Strasbourg Court.
70. The Government were of the opinion that part of the legal costs claimed by the applicant were completely irrelevant to the present case and in respect of other alleged costs no invoices had been submitted or money paid. The Government asked the Court to reject the applicant ’ s claims for costs and expenses.
71. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that absence of proof of payment does not necessarily result in the rejection of a claim for costs and expenses that is in itself well-founded (see S. v. Estonia, no. 17779/08, § 55, 4 October 2011, and Krejčíř v. the Czech Republic, nos. 39298/04 and 8723/05, § 137, 26 March 2009). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,444.74 covering costs under all heads.
72. 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.
1. Declares, unanimously, the application admissible;