Security and Duty of Protection

Gallogly v United Kingdom (decision), 11 May 1981 [ECtHR]

Case no 7990/77

7. The applicant has placed the main emphasis in his application on an alleged violation of his rights under Article 11 of the Convention. He claims that the prison authorities should have supported him in the assertion of his rights as a trade-unionist by positive action, at least they should not have interfered with these rights by a) warning him about his trade union activities while he was still employed under the pre-release employment scheme, b) by recalling him at the request of the employer in knowledge that the true reason for this request was that the employer objected to his trade union activities and c) by interfering with his attempts to protect his trade union rights by legal action and to enlist the necessary trade union and legal advice to this end.

The Commission first observes that the applicant cannot claim to be a victim of a violation of Article 11 of the Convention insofar as his right to join a trade union even as a prisoner was indeed recognised by the authorities, and insofar as his right to be protected against dismissal by his employer on account of trade union activities was effectively asserted by the Industrial Tribunal. Nor can he claim to be a victim of a violation of his rights under Article 11 insofar as his claims come under other more specific provisions of the Convention such as his right to respect for his correspondence with his trade union (see paras. 5 and 6 above). Insofar as the applicant generally claims a right to positive protection by the prison authorities of his rights as a trade-unionist, the Commission considers that the freedoni to form and join trade unions as laid down in Article 11 of the Convention does not include or imply such a right. It only requires that trade unions should be able to pursue, their tasks including in particular the protection of the interests of their members without interference by State authorities, but it does not require that these authorities actively support a union or an individual union member in a particular case. An intervention by the prison authorities with the applicant's employer to the effect that the latter's request for the applicant's recall would be incompatible with his trade union rights was therefore not required as such action was not an element necessarily inherent in the notion of freedom to form or join trade unions for the protection of one's interests, nor indispensable for the effective protection of this freedom (cf. mutatis tnutandis the judgments of the ECHR in the National Union of Belgian Police case, § 38, and in the Swedish Engine Drivers' Union case, § 39).

Finally, as regards the warning given to the applicant while he was still working on the pre-release employment scheme, the Commission considers that it did not interfere with the applicant's right to join a trade union as such. It only drew his attention to possible consequences of his trade union activities while he was on the scheme, and to the fact that the prison authorities saw no possibility to intervene themselves with regard to any action taken by the employer on account of these activities.

The Commission therefore concludes that the applicant's complaint of an unjustified interference with his freedom to join a trade union for the protection of his interests is manifestly ill-founded within the meaning of Article 27 (2) of the Convention.

8. As regards the applicant's further contention that he was discriminated as a trade-unionist in the enjoyment of his rights and freedoms under Articles 6, 8 and 10 of the Convention, or that he was discriminated against as a prisoner in the enjoyment of his trade union rights under Article 11 of the Convention, the Commission considers that this complaint is also manifestly ill-founded. As the Government have rightly pointed out, the applicant was in an almost unique situation as a prisoner who by being on the pre-release employment scheme had the possibility to manifest himself as an active trade unionist. His position cannot therefore be compared with that of prisoners serving their sentence in a normal prison, nor can it be compared with that of trade-unionists who are not serving a prison term. There is no appearance that within the small group of comparable persons, namely those serving their sentence on the pre-release employment scheme, the applicant was in fact discriminated against because of his trade union activities, because under the applicable provisions any request by an employer to recall such a person to prison would have entailed the same consequences even if it had been made on account of trade union activities. For these reasons the Commission must also reject the applicant's complaint under Article 14 of the Convention as being manifestly ill-founded.

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