CCPR/C/142/D/3844/2020

GE.24-22500 (E) 161224 161224

Human Rights Committee

Decision adopted by the Committee under the Optional

Protocol, concerning communication No. 3844/2020*, **

Communication submitted by:

S.F. (represented by counsel, Stanislovas Tomas)

Alleged victim:

The author

State party:

Lithuania

Date of communication:

26 July 2019 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 9 November 2020 (not issued

in document form)

Date of adoption of decision:

7 November 2024

Subject matter:

Dismissal of an employee who led a trade union

Procedural issue:

Substantiation

Substantive issues:

Freedom of association; freedom of opinion and

expression; work/employment rights

Articles of the Covenant:

19 and 22

Article of the Optional Protocol:

2

1.

The author of the communication is S.F., a national of Lithuania born in 1974. He

asserts that the State party has violated his rights under articles 19 and 22 of the Covenant.

The Optional Protocol entered into force for the State party on 20 February 1992. The author

is represented by counsel.

Facts as presented by the author

2.1

From 1995 to 7 August 2015,1 the author was employed by Lithuanian Railways, a

company wholly owned by the Ministry of Transport and Communications. His job was to

repair and inspect trains before their departure to ensure compliance with technical safety

criteria.

2.2

Since 10 August 2011, the author has also been the President of the Solidarity Trade

Union of Lithuanian Railways Workers. He defends workers’ rights and combats corruption.

* Adopted by the Committee at its 142nd session (14 October–7 November 2024).

** The following members of the Committee participated in the examination of the present

communication: Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo,

Yvonne Donders, Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran,

Bacre Waly Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana

Šurlan, Kobauyah Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

1 The author also indicates that he was dismissed from that job on 28 September 2015.

United Nations

CCPR/C/142/D/3844/2020

International Covenant on

Civil and Political Rights

Distr.: General

17 December 2024

Original: English

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He has raised serious allegations relating to corruption and a lack of accountability and

transparency in State-owned companies and large-scale fraud and money laundering at the

expense of taxpayers.

2.3

Under Lithuanian law, workers may strike pursuant to a collective bargaining

agreement between a trade union and an employer. Beginning in 2011, the author, in his role

as the leader of the Solidarity Trade Union, campaigned for the signing of a collective

bargaining agreement between Lithuanian Railways and its workers. The negotiations began

only at the end of 2017. On 29 December 2017, Lithuanian Railways refused to continue the

negotiations, thereby denying recognition of its workers’ right to strike.

2.4

The author’s advocacy for the strike and for the collective bargaining agreement led

to his dismissal from his job. Lithuanian Railways also persecuted and intimidated members

of the Solidarity Trade Union. As a result, the author created a pathway to secret membership

in the Solidarity Trade Union. Following that measure, the composition of the Solidarity

Trade Union changed, such that a majority of its members are secret members. The Solidarity

Trade Union is forced to meet and organize clandestinely.

2.5

On 28 July 2014, the author organized protests of workers outside the offices of

Lithuanian Railways, outside another State-owned company and outside the offices of the

Ministry of Transport and Communications. He and the other workers chanted slogans

including, “No to the persecution of trade union members”, “End the abuse”, “No to

psychological terror”, “No to intimidation and terror” and “No to corruption”.

2.6

The Government repressed the protests, which had attracted media attention, and

initiated dismissal proceedings against the protest organizers, including the author. On

30 October 2012 [sic], Lithuanian Railways issued an order in which it dismissed the author

from his employment.

2.7

The author successfully appealed against his dismissal. On 15 July 2013, the Vilnius

Regional Court ordered his reinstatement to his position. He then resumed his post with

Lithuanian Railways. He feared, however, that he would be dismissed again because of his

pro-labour and anti-corruption activities. By 2015, he had represented workers in several

judicial proceedings against Lithuanian Railways.

2.8

On five occasions in 2015, while working as a train inspector, the author refused to

sign forms in which it was stated that he had completed his technical inspection and that the

trains were ready for departure. The author refused to sign the forms because he had been

assigned on those occasions to perform inspections in the evening. In such cases, the train

would depart in the morning, i.e. about 12 hours after his inspection. The author believed that

the situation was a trap. During the 12 hours after the inspection, it would have been possible

for someone to sabotage the train to provoke an accident. That could have caused the deaths

of passengers. Fearing such a situation, on 9, 11, 13, 17 and 21 September 2015, the author

wrote on the inspection forms, “I do not accept liability”.

2.9

On 28 September 2015, the author was again dismissed from his job. On 9 June 2016,

the Vilnius City District Court denied his appeal against of his dismissal. On 28 December

2016, the Vilnius Regional Court denied the author’s appeal against of the decision of the

District Court. On 10 November 2017, the Supreme Court denied his cassation appeal. The

author states that he has not submitted the same matter to another international body for

consideration.

Complaint

3.1

The author claims that, in violation of article 19 of the Covenant, his dismissal from

employment at the State-owned railway company constituted punishment for an expression

of opinion. The statement that he wrote on the five inspection forms (“I do not accept

responsibility”) represented his opinion about the safety policy of the railway company and

the Lithuanian Ministry of Transport and Communications. It put pressure on the railway

company to change its regulations to increase passenger safety. Therefore, the author should

not have been dismissed based on that statement.

3.2

In violation of the author’s rights under article 22 of the Covenant, article 21 (1) of

the Lithuanian Law on Trade Unions does not provide a standard of protection for workers

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elected to the governing bodies of trade unions. According to that provision of domestic law,

a worker elected to a governing body of a trade union may not be dismissed without the

consent of that governing body when the worker is not at fault. If the worker is at fault,

however, even the president of a trade union may be dismissed without the consent of the

trade union. When a worker who is elected to a governing body of a trade union is dismissed

from employment, the dismissal should be presumed to represent impermissible punishment

for trade union activities.

State party’s observations on admissibility and the merits

4.1

In its observations of 9 July 2021, the State party considers that the communication is

inadmissible because it is insufficiently substantiated and is incompatible ratione materiae

with the provisions of the Covenant. For the same reasons, it is without merit. It is stated in

the applicable official job description that an inspector-repairman of railway carriages is

responsible for the proper performance of specified duties, the correctness of information

provided, the proper and timely technical inspection of train carriages and compliance with

the rules of procedure and other legal acts. The author familiarized himself with the job

description and signed it on 4 September 2015. He also confirmed with his signature that he

was required to follow the job description, although he handwrote the following statement

on the document: “only as far as it is possible and does not contradict the laws of the Republic

of Lithuania, [European Union] laws and other regulatory documents and my remarks.”

4.2

On 1 July 2014, the author signed the operating technology form of the Vaidotai

Railway Station. On 11 August 2014, he signed the rules of procedure of work that were in

force at the time. Those rules had been negotiated with the author in his capacity as the

Chairman of the trade union of Lithuanian Railways. Indeed, on 24 July 2014, he had signed

the rules in that capacity. In paragraph 79 of the rules, it was stated that failure to perform or

inappropriate performance of job duties owing to the fault of an employee constituted a

violation of work discipline. In paragraphs 80 and 81 of the rules, it was stated that penalties,

including dismissal, would be imposed for disciplinary violations such as a failure to perform

direct job responsibilities and the improper performance thereof. In paragraphs 95 and 96 of

the rules, it was stated that individual labour disputes that could not be resolved by the parties

would be considered by a labour dispute commission and the courts.

4.3

On 15 April 2014, the author signed a statement in which he confirmed that he was

familiar with an official instruction of Lithuanian Railways in which it was stated that

employees would carry out, in a timely and proper manner, the technical inspection of the

railway carriages.

4.4

On 9, 11, 13, 17 and 21 September 2015, the author placed the statement, “I do not

accept responsibility” instead of his signature on the train inspection forms. On 15 September

2015, Lithuanian Railways, invoking article 240 (1) of the Labour Code, asked the author to

provide a written explanation of his failure to sign the inspection form on 9, 11 and

13 September 2015, in violation of paragraph 5.5.18 of the operating technology form. On

21 September 2015, the author submitted his written response, in which he stated that he had

not violated procedure because he was obligated to sign the form only if the train left during

his shift. If the train left after his shift, he could not be responsible for the inspection, since

he could not take the train home with him and then bring it back before starting his shift the

next day. He alleged that employees like him, who were disliked by Lithuanian Railways,

could be found responsible for improper acts that they had not committed.

4.5

On 18 September 2015, Lithuanian Railways sent the author a similar letter regarding

his failure to sign the form on 15 and 17 September 2015. On 23 September 2015, the author

responded and stated that he had submitted all of his explanations in his letter of

21 September 2015.

4.6

On 18 September 2015, Lithuanian Railways sent the author a letter in which it

confirmed that, on 4 September 2015, it had received a report regarding the author’s failure

to comply with several requirements contained in his job description. Lithuanian Railways

confirmed that it had examined the author’s responses and did not agree with them and

informed the author that he was required to follow the job description, the operating

technology form and other relevant documents. Lithuanian Railways also gave the author

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notice that his refusal to comply with the requirements of those legal acts would be

considered arbitrary. On 19 September 2015, the author received and signed for the letter.

4.7

A similar exchange took place regarding the fifth incident, which had occurred on

21 September 2015. On the same date, Lithuanian Railways sought in writing an explanation

from the author. On 23 September 2015, Lithuanian Railways organized a meeting in which

the author participated. He stated that he had previously provided his arguments, that he had

received the warning letter, that his decision not to sign the form had been deliberate, that he

had no legal obligation to sign it and that he could face problems if something were to happen

to the trains after his inspection and before their departure. During the meeting, Lithuanian

Railways decided to adopt a disciplinary decision resulting from the author’s failure to sign

the inspection form on 21 September 2015.

4.8

On 25 September 2015, the author submitted a written explanation regarding his

failure to sign the form on 21 September 2015. He stated that his position was unchanged

and asked Lithuanian Railways not to request any further explanations on the same issue.

4.9

On 24 and 25 September 2015, the author again refused to sign the form required for

the inspection of trains.

4.10

On 28 September 2015, by a formal order, the author was dismissed from his job

based on the violations of 9, 11, 13, 15 and 17 September 2015. In the order, the

aforementioned procedural measures and exchanges were described.

4.11

Before the Vilnius City District Court, the author claimed that Lithuanian Railways

had violated articles 134 (1) and 227 (1) of the Labour Code by failing to take the author’s

circumstances, including his previous unreasonable dismissal, into account and by imposing

a disproportionate disciplinary penalty. He also argued that the council of the trade union of

railway workers, which was headed by the author, had not expressed agreement with the

author’s dismissal. The author maintained that work discipline should be ensured not by

drastic measures but by creating organizational and economic conditions for efficient work

and by promoting good performance. He argued that he was being persecuted owing to his

trade union activities.

4.12

In its decision of 9 June 2016, the Vilnius City District Court took note of the author’s

job functions, pursuant to the official job description. It noted the requirement that inspectors

sign inspection forms and the author’s statements that he was familiar with the relevant rules.

It made the following findings. The procedure under the relevant provisions of the Labour

Code for dismissal from employment had not been violated and Lithuanian Railways had

reasonably characterized the author’s acts as arbitrary and a serious disciplinary violation,

thereby justifying his dismissal. On 9, 11, 13, 15 and 17 September 2015, the author had

deliberately, repeatedly and systematically made the statement “I do not accept responsibility”

in lieu of placing his required signature on the form, even after receiving a notice from

Lithuanian Railways of the violation and consequences. He had repeated those acts on 24 and

25 September 2015, even after the meeting of 23 September 2015. A signature represented

confirmation that the inspection had been done. It signified responsibility for one’s own acts,

not for the acts of other persons. The author, having worked as an inspector since 1995,

should have known that. He had violated the procedure of work by his own intentional,

deliberate and systematic acts, without any objective justification. Lithuanian Railways had

lost trust in him. He had been punished on numerous occasions for previous disciplinary

violations. The author had chosen to express himself in inadequate and conflicting ways

during the hearing. There were no circumstances that proved that the author had been

persecuted owing to his activity in the trade union. He had not been the target of any reprisals.

Lithuanian Railways had not placed any restrictions on his actions.

4.13

In its decision of 28 December 2016, the Vilnius Regional Court made the following

findings. The author’s disagreement with the organization of inspection work by Lithuanian

Railways and his activity in the trade union did not exempt him from performing his direct

responsibilities. He had acted in an arbitrary manner, as he had not complied with the official

work standards. Lithuanian Railways had given notice to the author that his refusal to comply

with the requirements would be considered arbitrary. His explanation of his conduct did not

concern the essence of his job duties, which required him to sign the relevant form. An

inspector’s signature indicated completion of the inspection by the inspector during their shift.

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If one followed the interpretation of the author, he would be exempt from part of his job

responsibilities and his failure to provide a signature would mean that no inspection had been

carried out. By writing, “I do not accept responsibility,” the author was seeking the same

objective that he had failed to reach while acting as head of the trade union. Namely, he was

seeking to introduce a rule whereby all acts in the company would be formalized through

transfer and acceptance acts. That purpose could not be considered to protect the interests of

all employees. Moreover, the author was pursuing that objective in violation of the

requirements under domestic law. Under article 229 of the Labour Code, an employer had

the power to organize the work of its employees. By failing to perform his job duties, the

author had exceeded his powers. No evidence in the case file indicated that the author had

been dismissed in connection with his membership in the trade union or his labour complaint

against Lithuanian Railways. The disciplinary penalty was not too severe, given the activity

of Lithuanian Railways, the impact of the author’s job responsibilities and the possible

consequences that could arise in the case of improper technical inspection of the train

carriages and brakes. The author had, on numerous occasions, failed to follow the

requirements set forth in the operating technology standards. His explanations on

25 September 2015 showed his disrespectful treatment of his colleagues and his inability to

maintain a business-like atmosphere. He admitted that he was deliberately failing to accept

responsibility for the failure to perform his responsibilities.

4.14

In its decision of 10 November 2017, the Supreme Court made the following findings.

The lower courts had reached reasonable conclusions. The author’s job responsibilities

related to railway transport safety and thus had to be performed in strict compliance with the

law. The factual circumstances established by the lower courts, combined with the applicable

legal standards, indicated that the disciplinary violation of the author had been reasonably

characterized as arbitrary and recognized as a serious disciplinary violation. The author had

intentionally committed the violations on numerous occasions, even after receiving warnings

not to do so. He had disregarded the warnings. His employer had no reason to expect that he

would not violate the work procedure in the future. The objectives of disciplinary liability

would not have been achieved in the author’s case by a less severe penalty. The lower courts

had examined the author’s circumstances in relation to his trade union activity and criticism

of his employer before concluding that those circumstances had not influenced the penalty

imposed.

4.15

On 8 January 2016, Lithuanian Railways issued a statement of the disciplinary

violations that had been committed by the author. He had not complied with the requirements

of various legal acts and official work procedures. According to the statement, Lithuanian

Railways had imposed disciplinary penalties on the author on 12 July 2002, 23 September

2002, 1 October 2003, 15 September 2006, 3 May 2010, 12 April 2011, 1 February 2012,

20 February 2012, 30 October 2012, 2 May 2014, 18 May 2015, 11 August 2015 and

28 September 2015. The disciplinary penalties had been imposed on the author both before

and after his involvement in trade union activities. That involvement began on 27 July 2011.

4.16

At the material time, i.e. on 1 January 2015, 43 trade unions were active within

Lithuanian Railways. On that date, the trade union headed by the author had as few as

73 members in the company, whereas on the same date, the remaining 42 trade unions had

as many as 4,490 members in the company. Those 42 trade unions were uniting into trade

union federations, while the trade union headed by the author remained isolated.

4.17

The State party properly guarantees the right of association at the domestic level, fully

implementing its international obligations. On 26 September 1994, Lithuania ratified the

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) of the International

Labour Organization. Domestic courts provide effective remedies when the consent of trade

unions to the dismissal of an employee is not sought as required.2

4.18

Article 19 of the Covenant does not apply in the author’s case because his dismissal

in 2015 was not connected with his activity in the trade union.3 The State party recounts the

2 Supreme Court of Lithuania, Case No. 3K-3-300/2014, Judgment, 30 May 2014.

3 European Court of Human Rights, Augustė v. Lithuania, Application No. 65717/14, Judgment,

26 February 2019, paras. 32–37; and Petropavlovskis v. Latvia, Application No. 44230/06, Judgment,

13 January 2015, paras. 75–87.

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relevant circumstances noted by the domestic courts. The right to hold an opinion should be

distinguished from deliberate, intentional and systematic violations of domestic laws. The

intentional disregard of domestic standards relating to the performance of direct job

responsibilities, in a context in which the health and safety of railway passengers is at stake,

cannot be equated to an opinion. The State party explains at length its position that the

author’s dismissal was lawful, was in pursuit of a legitimate aim and was proportionate.

Under article 238 of the Labour Code, when a disciplinary penalty is imposed, the seriousness,

circumstances and consequences of the disciplinary violation, the fault of the employee and

the employee’s work history must be considered. The author’s argument that the domestic

courts failed to assess the effect of his disagreement with the administration on the

disciplinary penalty imposed is unsubstantiated. Quite to the contrary, all three courts

examined that issue.

4.19

The author was never forced to take responsibility for the actions of third parties. If

something had happened to the trains after the author’s technical inspections, the employer

would have conducted an examination and appropriate legal action would have been taken

against those responsible. During the domestic proceedings, Lithuanian Railways confirmed

that no inspector-repairman of trains at the Vaidotai railway station had ever been accused of

any actions taken by third parties after the completion of a technical inspection. In its

submissions to the courts, Lithuanian Railways also explained that the railway infrastructure

was of particular importance and required specialized security. A separate company was

tasked with ensuring the security of the Vaidotai railway station and infrastructure, both

during the day and at night. The company specialized in providing security services to

railway stations in Lithuania. The railway site was also fenced. The author’s fear was thus

wholly unsubstantiated.

4.20

With respect to article 22 of the Covenant, the author erroneously alleges that

article 21 (1) of the Lithuanian Law on Trade Unions fails to adequately protect workers

elected to the governing bodies of trade unions. International law requires effective protection

of trade union officials against discrimination and negative consequences due to their union

membership and their activities by means of protection of their labour relations from adverse

actions, including dismissal. International law, however, does not refer to specific measures,

nor does it require States to protect against dismissal in all cases.4

4.21

As was noted by the domestic courts, article 134 (1) of the Labour Code of 2002,

which was in force at the relevant time, provides that the chairman of a trade union or the

chairman of a work council cannot be dismissed during their term of office under

article 136 (3) (1) of the Labour Code without the prior consent of the representative body of

the trade union or work council. In the author’s case, however, that provision did not apply

because his employment contract was terminated owing to a serious disciplinary violation,

in accordance with article 136 (3) (2) of the Labour Code. Because the author was lawfully

dismissed at the initiative of his employer for a serious disciplinary violation, the prior

agreement of the trade union was not required by law.

Author’s comments on the State party’s observations on admissibility and the merits

5.1

In his comments of 29 September 2021, the author reiterates his arguments and

maintains that, by expressing his opinion, for which he was dismissed, he was pursuing his

objectives as a trade unionist.

5.2

Under article 19 of the Covenant, freedom of expression covers any form of the

author’s signature. His handwritten statement, “I do not accept responsibility” is a form of

signature.

5.3

The State party admitted that domestic legislation prohibited the dismissal of the

author as a leader of the trade union, because the trade union did not consent to the dismissal.

His dismissal was unlawful and was not proportionate to a legitimate aim. Because of his

role in the trade union, the burden of proof should be on the State party to rebut a presumption

4 The State party provides background information on the evolution of Lithuanian labour laws in the

light of the shift from the former Soviet system to a democratic system.

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that he was dismissed for punitive reasons. The author takes issue with additional aspects of

the State party’s observations.

State party’s additional observations

6.

In its observations of 28 January 2022, the State party maintains that the author

ignored the explanations that it previously provided and made seriously misleading

statements on many points. His arguments are unfounded. The author incorrectly maintained

that the State party had recognized that, by failing to sign the form, he had been pursuing his

trade unionist objectives. He also incorrectly asserted that the State party had recognized that

the author had been dismissed as a form of punishment for refusing to change his opinion. In

fact, the State party maintains its strong position that Lithuanian Railways and the three

domestic courts found that the author, as an employee, had violated his job responsibilities

under domestic law. The State party reiterates its explanations on that subject. It adds that the

courts established that finding because the author had disregarded the established procedure

for inspecting trains and the train had had to be inspected by another employee. That meant

that the rhythm of the railway station’s operations had been disrupted and the same work had

been performed twice. Such duplication of tasks could affect the departure times of trains.

Thus, the author’s failure to fulfill his duties cannot be regarded as formal or insignificant.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

7.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

7.3

The Committee notes the State party’s position that the communication is

insufficiently substantiated and is therefore inadmissible under article 2 of the Optional

Protocol. The Committee notes the author’s claim that, when working as an

inspector-repairman for Lithuanian Railways, a State-owned company, he was routinely

required to sign forms to indicate that he had inspected train carriages and brakes to verify

their safety. The Committee notes the author’s assertion that, by repeatedly and deliberately

writing, “I do not accept responsibility” instead of signing the forms, he was expressing a

protected opinion under article 19 of the Covenant and should not have been dismissed. The

Committee notes the findings of the domestic courts that, after making that written statement

on several occasions, the author received written notification of the potential disciplinary

consequences, was invited to provide a written explanation, was heard in an in-person

meeting with his employer, subsequently repeated the same violation and was dismissed

shortly thereafter. The Committee notes the relevant domestic and administrative standards

and laws that established that the author’s conduct constituted an arbitrary and serious

disciplinary violation that warranted his dismissal, considering all the relevant circumstances.

The Committee observes that the author did not provide any objectively reasonable

justification for his stated objective in writing “I do not accept responsibility” on the

inspection forms. He states that he feared that saboteurs would interfere with the trains after

his inspections and before their departure and that he would be falsely accused of having

conducted improper inspections. The Committee notes, however, that the author began

working as an inspector-repairman for Lithuanian Railways in 1995 and does not allege that

he faced any type of sabotage or false accusations during those two decades of service. Nor

does he indicate that he raised those concerns to his employer before deciding to make the

impugned statements and refrain from certifying his inspections. The inspections were a core

element of the responsibilities set forth in his job description. The Committee considers that

the author has not provided any elements to substantiate his assertion that, by stating in

writing, without a reasonable and objective justification, that he would not perform his

ordinary and essential job duties, he was expressing an opinion that should have protected

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him from dismissal. The author’s claim under article 19 of the Covenant is therefore

inadmissible under article 2 of the Optional Protocol.

7.4

With respect to the author’s claim that the State party violated his right to freedom of

association, the Committee notes, on the basis of the information provided to it, that the

dismissal of the author appears to have resulted directly from his refusal to perform an

essential element of his professional duties. The Committee also notes that there is no

evidence indicating that his dismissal resulted from his role or activities in a trade union nor

has he provided indications that, during the disciplinary proceedings, he faced arbitrariness

or bias that could have resulted from his trade union role. The Committee further notes the

State party’s information that the author had been the subject of six disciplinary penalties by

Lithuanian Railways before he became involved in the trade union movement in 2011. In

view of the foregoing, the Committee considers that the claim under article 22 of the

Covenant is insufficiently substantiated and is therefore inadmissible under article 2 of the

Optional Protocol.

7.5

In the light of its findings, the Committee does not deem it necessary to examine other

grounds of inadmissibility.

8.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 2 of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the State party and to the

author.