Last Updated on May 11, 2019 by LawEuro

Information Note on the Court’s case-law 223
November 2018

Ognevenko v. Russia – 44873/09

Judgment 20.11.2018 [Section III]
Article 11
Article 11-1
Freedom of association

Dismissal of train driver following his participation in strike due to blanket ban on strike for certain categories of railway workers: violation

Facts – The applicant was a train driver with Russian Railways and a member of one of the railway workers’ trade unions. The trade union entered into negotiations with Russian Railways, seeking a general pay rise and the introduction of long-service bonuses for the relevant staff. The negotiations failed and in April 2008 the applicant took part in a strike, arriving at work but refusing to take up his duties. Relying on the ban on the right to strike of certain categories of railway workers set by Russian law, the applicant’s employer, Russian Railways, considered his abstention from work during the strike unlawful and fired him for a repeated failure to perform work duties.

Law – Article 11: The right to strike, which fell under the protection of Article 11 of the Convention, was an important aspect of the freedom of association and the right to form a trade union and for that trade union to be heard and to bargain collectively. Those considerations found support in the relevant international instruments. The right to strike was recognised by supervisory bodies of the International Labour Organization (ILO) as an indispensable corollary of the freedom of association. Equally, the right to strike was provided for by the European Social Charter. The Parliamentary Assembly of the Council of Europe had also reiterated the importance of the right to strike.

The Government had claimed that railway transport was an essential service and that certain categories of railway workers could be prohibited from participating in strikes if those strikes threatened the country’s defence, State security or the life or health of people. Given the essential role of railway transport in bolstering the economy and other interests of people, it had argued that any circumstances negatively affecting those interests justified the ban on the right to strike of certain categories of railway workers. Addressing in particular the strike of April 2008, the Government had referred to alleged delays in passengers and freight getting to their destinations and the dangerous accumulation of people on train platforms.

There was an apparent international consensus that, as in the case of “members of the armed forces, of the police or of the State administration”, restrictions might also be imposed on the right to strike of workers providing essential services to the population. However, neither the ILO nor the European Committee of Social Rights (ECSR) considered transport in general, and railway transport in particular to constitute an essential service, an interruption of which could endanger the life or health of (a part of) the population. Both the ILO and the ECSR had regularly criticised Russian legislation banning railway workers’ right to strike. There was no reason for the Court to reject the existing international approach to the definition of an essential service and to consider the railway transport as such.

Even assuming that railway transport was an essential service, serious restrictions such as a complete ban on the right to strike in respect of certain categories of railway workers would still require solid evidence from the State to justify their necessity. While a work stoppage on railway transport obviously could lead to negative economic consequences, those would not be sufficient to justify a complete ban on certain categories of railway workers’ right to strike.

The Government had not substantiated any alleged damage caused by the delayed arrivals of passengers and freight. As for the accumulation of people on train platforms, similarly, the Court had not been presented with any evidence to show that the regulation of passengers’ access to train platforms had been outside Russian Railways’ control because of the strike. The Government had not provided any information which could have explained the general policy choice made by the federal legislature in favour of the ban on certain categories of railway workers’ right to strike. The Government had also not shown that they had ever assessed the risk of abuse if the prohibition on certain categories of railway workers’ right to strike had been removed. Equally, there was no information as to whether the Government had ever considered any alternatives to the ban on the right of certain categories of railway workers to strike.

The Court had not been informed of any safeguards designed by the Government to compensate railway workers for their inability to participate in strike action. After having their demands rejected, the applicant’s trade union had decided to declare a strike. The Government had not suggested that any other means such as conciliation or arbitration, as required by the ILO, or else had been available to the trade union to protect their members’ interests. Furthermore, the applicant’s trade union had notified Russian Railways of the strike in advance and had provided minimum services during the strike in question. The Government had not contested that fact or the adequacy of those services.

The strike itself had not been declared unlawful either by a national court or another independent authority. By joining it the applicant had exercised his freedom of association. However, when the applicant had challenged his dismissal before the national courts, they had had to confine their analysis to formal compliance with the relevant Russian laws and consequently had not been able to balance the applicant’s freedom of association with competing public interests.

The applicant’s participation in the strike action had been considered as a breach of disciplinary rules which, when taken together with a previous transgression, had resulted in the most severe penalty – dismissal. Such sanctions had inevitably had a “chilling effect” on trade union members taking part in industrial actions such as strikes to protect their professional interests. The applicant’s dismissal had constituted a disproportionate restriction of his right to freedom of association.

Conclusion: violation (six votes to one).

Art. 41: EUR 6,000 in respect of non-pecuniary damage; EUR 2,000 in respect of pecuniary damage.

(Voir aussi Wilson, National Union of Journalists et autres c. Royaume-Uni, 30668/96 et al., 2 juillet 2002, Note d’information 44 ; Demir et Baykara c. Turquie [GC], 34503/97, 12 novembre 2008, Note d’information 113 ; Syndicat suédois des conducteurs de locomotives c. Suède, 5614/72, 6 février 1976 ; Syndicat national de la police belge c. Belgique, 4464/70, 27 octobre 1975 ; et National Union of Rail, Maritime and Transport Workers c. Royaume-Uni, 31045/10, 8 avril 2014, Note d’information 173)