CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 janvier 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 30 January 2023   SECOND SECTION Application no. 38687/22 Eimutis MISIŪNAS against Lithuania lodged on 2 August 2022 communicated on 10 January 2023 SUBJECT MATTER OF THE CASE The application concerns the applicant’s grievance that he could not effectively appeal against the State authorities’ decision not to re-appoint him to a post of a judge. In 2015 the applicant became a judge. Afterwards, between December 2016 and August 2019 he had been appointed and served as the Minister of Interior, and between August 2019 and December 2020 as the vice minister at the Ministry of Defence. In December 2020 the applicant asked the relevant authorities – the National Courts’ Administration and the Chancellery of the President of the Republic – to be re-appointed to his previously held post of a judge. In public statements of January 2021 State officials, including the President of the Republic, expressed the view that the applicant would not be re-appointed. As summarised by the applicant, the authorities’ reasoning had been that (i)   the applicant had left the post of a judge for a political post, (ii) that the President of the Republic considered that the applicant would lack impartiality and be unable to responsibly perform the duties of a judge, and (iii) that a period of “cooling down” was necessary after a political post, without the duration of that period being specified. No formal decision was taken on the applicant’s request to be re-appointed as a judge. The applicant then lodged a complaint with the Vilnius Regional Court, which refused to accept it for examination. Its decision was upheld by the Court of Appeal. By a final ruling of 20 April 2022 the Supreme Court held that there had been no reason to obtain a ruling by the Constitutional Court regarding what the applicant saw as a legislative omission – the lack of a legislative norm which would allow to appeal the President’s choice not to re-appoint the applicant to the post of a judge. The Supreme Court also held that the applicant’s claim to oblige the President of the Republic to appoint the applicant to a post of judge was not amenable to review in court. Under Article 6 § 1 of the Convention the applicant complains that he did not have an effective right of access to court. Under Article   13 of the Convention the applicant further complains that the Lithuanian courts have taken advantage of a lacuna in legal regulation and barred the applicant from protecting his rights. He explains that under Article 61 §§ 1 and 2 of the Law on Courts, as applicable at the relevant time, a former judge could be appointed to the post of a judge; however, the law does not provide that the President of the Republic adopts a decree when he or she refuses to appoint that person to the post of a judge. Besides, the legislation does not provide for a right to appeal in court such a decision by the President of the Republic. QUESTIONS TO THE PARTIES 1.     Was Article   6 §   1 of the Convention under its civil head applicable to the proceedings in the present case?   If so, did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see, mutatis mutandis , Cudak v. Lithuania [GC], no. 15869/02, §   64, ECHR 2010)?   2.     Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?   Did the applicant have an “arguable claim” that there had been a violation of his rights under Article 13 read in conjunction with Article 8?