Danilenkov and Others v Russia, 30 July 2009 [ECtHR]

Case no 67336/01

115. The remaining applicants complained under Articles 11 and 14 of the Convention about a violation of their right to freedom of association in that the State authorities had tolerated the discriminatory policies of their employer and refused to examine their discrimination complaint due to absence of effective legal mechanism in the domestic law. (...)

A. Scope of the State’s obligations under Article 14 of the Convention taken together with Article 11 of the Convention

(...) 120.  The Court notes that the parties disagree whether the circumstances of the present case involve direct intervention by the State, given the status of the Kaliningrad seaport company. The Court considers that it should not rule on this issue since responsibility of the Russian Federation would, anyway, be engaged if the matters complained of resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002‑V).
121. The Court reiterates that Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, 27 October 1975, § 38, Series A no. 19 and Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 39, Series A no. 20). The words “for the protection of his interests” in Article 11 § 1 are not redundant, and the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (see Wilson, cited above, § 42)
122.  The Court observes that the applicants obtained State protection in respect of one-off measures by their employer which they believed violated their rights. Thus, a domestic court ordered compensation in the form of two months’ wages for their reassignment to DUR-only work teams, which had allegedly resulted in a decrease in their earnings (see paragraph 46 above); the allegedly prejudicial safety regulations test was organised again as ordered by the State Work Safety Inspectorate (see paragraphs 27-28 above); a regional prosecutor found that there had been an arbitrary decrease in working hours, giving rise to an award of lost earnings and compensation for non-pecuniary damage by a court of law (see paragraphs 31 and 33 above); lost earnings and compensation for non‑pecuniary damage were also granted for non-enforcement of the judgment of 24 May 2002 (see paragraph 90 above); and in most instances the courts also granted compensation to individual trade union members affected by the employer’s actions (see paragraphs 53-73 above). Furthermore, the domestic courts carefully examined the applicants’ grievances in connection with the lucrative transfer to a new stevedoring company offered to their co-workers but not to them and granted their claims for lost earnings, reinstatement and non-pecuniary damage (see paragraph 82 above). The applicants did not complain that the judgments of the domestic courts in this connection were ill-founded or arbitrary.
123. Nevertheless, as to the substance of the right of association enshrined in Article 11, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 144, 12 November 2008). An employee or worker should be free to join, or not join a trade union without being sanctioned or subject to disincentives (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 39, ECHR 2007‑...). The wording of Article 11 explicitly refers to the right of “everybody”, and this provision obviously includes a right not to be discriminated against for choosing to avail oneself of the right to be protected by trade union, also given that Article 14 formed an integral part of each of the Articles laying down rights and freedoms whatever their nature (see National Union of Belgian Police, cited above, § 44). Thus the totality of the measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership which, according to the Freedom of Association Committee, constitutes one of the most serious violations of freedom of association capable to jeopardize the very existence of a trade union (see paragraph 107 above).
124. The Court finds crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and to have the right to take legal action to obtain damages and other relief. Therefore, the States are required under Articles 11 and 14 of the Convention to set up a judicial system that would ensure real and effective protection against the anti-union discrimination.
125. The Court thus has to consider whether sufficient measures were taken by the authorities to protect the applicants from alleged discriminative treatment on the ground of their choice to join the trade-union.

B. Sufficiency of protection against discrimination on the ground of the applicants’ trade union membership

(...) 130. The Court notes that various techniques were used by the Kaliningrad seaport company in order to encourage employees to relinquish their union membership, including their re-assignment to special work teams with limited opportunities, dismissals subsequently found unlawful by the courts, decrease of earnings, disciplinary sanctions, refusal to reinstate following the court’s judgment etc. As a result, the DUR membership has dramatically shrunk from 290 in 1999 to 24 in 2001. The Court also refers to the findings of the Kaliningrad Regional Duma (see paragraph 51 above) and ILO Committee on Freedom of Association (see paragraph 108 above) that the question of anti-union discrimination was reasonably raised by the applicants. It agrees therefore that the clear negative effects that one’s membership of DUR had on the applicants were sufficient to constitute a prima facie case of discrimination in enjoyment of the rights guaranteed by Article 11 of the Convention.
131. The Court further notes that the applicants in the present case requested the authorities to prevent abuse of employers aimed at compelling them to leave the union. They drew the courts’ attention to a regular repetition of discriminative actions against them over a long period of time. To their point of view, granting of their discrimination complaint would serve as the most effective tool for protection of their right to join a trade union without being sanctioned or subject to disincentives.
132. The Court observes that Russian law at the material time contained a blanket prohibition on all discrimination on the ground of trade union membership or non-membership (section 9 of the Trade-Union Act). Under domestic law the applicants could have their discrimination complaint examined by a court, by virtue of the general rules of the Russian Civil Code (Articles 11-12) and the lex specialis contained in section 29 of the Trade Union Act.
133. These provisions, however, remained ineffective in the instant case. The Court notes that the domestic judicial authorities, in two sets of proceedings, refused to entertain the applicants’ discrimination complaints, having held that the existence of discrimination could be established in criminal proceedings only and that therefore the applicants’ claims could not be determined via a civil action (see paragraphs 47 and 49 above). This position, also confirmed in the Government’s observations, was nevertheless once overruled when the Baltiyskiy District Court examined on the merits yet another discrimination complaint lodged barely one year later (see paragraphs 83-84 above).
134. However, the principal deficiency of the criminal remedy is that, being based on the principle of personal liability, it requires proof “beyond reasonable doubts” of direct intent on the part of one of the company’s key managers to discriminate against the trade-union members. Failure to establish such intent led to decisions not to institute criminal proceedings (see paragraphs 38-39, 45, 47 and 49 above). Furthermore, the victims of discrimination have only a minor role in the institution and conduct of criminal proceedings. The Court is thus not persuaded that a criminal prosecution, which depended on the ability of the prosecuting authorities to unmask and prove direct intent to discriminate against the trade union members, could have provided adequate and practicable redress in respect of the alleged anti-union discrimination. Alternatively, the civil proceedings would allow fulfilling the far more delicate task of examining all elements of relationship between the applicants and their employer, including combined effect of various techniques used by the latter to induce dockers to relinquish DUR membership, and granting appropriate redress.
135. The Court will not speculate on whether the effective protection of the applicants’ right not to be discriminated against could prevent future unfavourable actions against them from the part of their employer, as the applicants suggested. Nonetheless it considers that given an objective effect of the employer’s conduct, the lack of such protection could entail fear of potential discrimination and discourage other persons from joining the trade union, which may lead to its disappearance, thus negatively affecting the enjoyment of the freedom of association.
136. In sum, the Court considers that the State failed to fulfil its positive obligations to adopt effective and clear judicial protection against discrimination on the ground of trade union membership. It follows that there has been a violation of Article 14 of the Convention taken together with Article 11.

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