Last Updated on December 7, 2021 by LawEuro
Information Note on the Court’s case-law 257
December 2021
Yakut Republican Trade-Union Federation v. Russia – 29582/09
Judgment 7.12.2021 [Section III]
Article 11
Article 11-1
Form and join trade unions
Trade-union federation ordered to expel a grassroots union of working prisoners because of a statutory ban on their unionisation: no violation
Facts – A trade-union federation was ordered to oust a grassroots union of working prisoners because of a statutory ban on the unionisation of prisoners.
Law – Article 11:
(1) Admissibility
As to the compatibility ratione personae with the Convention, Article 11 protected both workers and unions. As a worker should be free to join a union, so should the union be free to choose its members. By extension, as a union should be free to join a federation, so should the federation be free to admit the union.
(2) Merits:
The court order, which obliged the applicant federation to expel the trade union, had restricted the applicant’s right under Article 11. That restriction had been prescribed by law. Like prisoners’ other Convention rights, their right to form and to join trade unions could be restricted for security, in particular, for the prevention of crime and disorder.
Although the Convention did not precisely define the concept of “trade union” beyond a general indication that it was an association formed for the purpose of defending the interests of its members, most of the cases considered by the Court had concerned employees and, more broadly, persons in an “employment relationship”.
However, prison work could not be equated with employment. Indeed, prison work differed from the work performed by ordinary employees in many aspects. It served the primary aim of rehabilitation and resocialisation, was aimed at reintegration, and was obligatory. A similar view had been expressed by the Russian Constitutional Court.
It was true that prisoners in general continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty. However, trade-union freedom might be difficult to exercise in detention.
Nevertheless, the Convention was a “living instrument” and it might well be, therefore, that developments in that field might at some point in future necessitate the extension of the trade-union freedom to working inmates, especially if they worked for a private employer. Indeed, paragraph 2 of Article 11 did not exclude any occupational group from the scope of that Article. At most the national authorities were entitled to impose “lawful restrictions” on certain of their employees in accordance with Article 11 § 2.
However, having regard to the current practice of the member States of the Council of Europe, there was no sufficient consensus to give Article 11 the interpretation advocated by the applicant.
In sum, the domestic courts’ order to the applicant federation to expel the union of the working inmates had not exceeded the wide margin of appreciation available to the national authorities in that sphere, and the restriction complained of had therefore been necessary in a democratic society.
Conclusion: no violation (five votes to two).
(Also see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, 11002/05, 27 February 2007, Legal summary; Stummer v. Austria [GC], 37452/02, 7 July 2011, Legal summary; Manole and “Romanian Farmers Direct” v. Romania, 46551/06, 16 June 2015, Legal summary).
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