CASE OF DANILENKOV AND OTHERS v. RUSSIA
(Application no. 67336/01)
30 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Danilenkov and Others v. Russia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 14 April and 7 July 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
(1) Mr Sergey Nikolayevich Danilenkov, born in 1965;
(2) Mr Vladimir Mikhaylovich Sinyakov, born in 1948;
(3) Mr Boris Pavlovich Soshnikov, born in 1951;
(4) Mr Anatoliy Nikolayevich Kasyanov, born in 1958;
(5) Mr Viktor Mikhaylovich Morozov, born in 1947;
(6) Mr Anatoliy Yegorovich Troynikov, born in 1947;
(7) Mr Dmitriy Yuryevich Korzhachkin, born in 1969;
(8) Mr Yuriy Ivanovich Zharkikh, born in 1970;
(9) Mr Anatoliy Ivanovich Kiselev, born in 1949;
(10) Mr Yuriy Anatolyevich Bychkov, born in 1969;
(11) Mr Aleksandr Igorevich Pushkarev, born in 1961;
(12) Mr Gennadiy Ivanovich Silvanovich, born in 1960;
(13) Mr Ivan Vasilyevich Oksenchuk, born in 1946;
(14) Mr Gennadiy Adamovich Kalchevskiy, born in 1957;
(15) Mr Aleksandr Ivanovich Dolgalev, born in 1957;
(16) Mr Vladimir Fedorovich Grabchuk, born in 1956;
(17) Mr Aleksandr Fedorovich Tsarev, born in 1954;
(18) Mr Aleksandr Yevgenyevich Milinets, born in 1967;
(19) Mr Lukshis Aldevinas Vintso, born in 1955;
(20) Mr Aleksandr Fedorovich Verkhoturtsev, born in 1955;
(21) Mr Igor Nikolayevich Vdovchenko, born in 1966;
(22) Mr Igor Yuryevich Zverev, born in 1969;
(23) Mr Nikolay Grigoryevich Yegorov, born in 1958;
(24) Mr Aleksandr Konstantinovich Lemashov, born in 1955;
(25) Mr Nikolay Nikolayevich Grushevoy, born in 1957;
(26) Mr Petr Ivanovich Mironchuk, born in 1959;
(27) Mr Nikolay Yegorovich Yakovenko, born in 1949;
(28) Mr Yuriy Yevgenyevich Malinovskiy, born in 1971;
(29) Mr Oleg Anatolyevich Tolkachev, born in 1964;
(30) Mr Aleksandr Viktorovich Solovyev, born in 1956;
(31) Mr Aleksandr Mikhaylovich Lenichkin, born in 1936;
(32) Mr Vladimir Petrovich Kolyadin, born in 1954.
7. The applicants are Russian nationals who live in Kaliningrad. The twentieth and thirty-first applicants died on unspecified dates.
A. Background to the application
B. Alleged discrimination by the seaport management
1. Reassignment of DUR members to special work teams
2. Decrease in the earning potential of DUR-member teams
3. Holding of the safety regulations test
4. Dockers' redundancies in 1998-99
5. Complaint to the ITF and new collective agreement
C. Proceedings before the domestic authorities
1. Attempted criminal proceedings against the seaport company's managing director
2. Proceedings for finding of discrimination and compensation
“...the very request for a finding of discrimination on the general ground of membership of a certain public association made by only a small group of its members is an indication of the absence of the alleged discrimination, while the situation of the plaintiffs is the result of their individual actions and characteristics and of objective factors.”
3. Decision of the Kaliningrad Regional Duma
“...3. In the Kaliningrad seaport company different labour conditions apply to workers depending on their trade union membership. As a result members of the DUR are placed at a disadvantage by their employer compared with those who do not belong to the above trade union.
4. The DUR reasonably raised an issue of discrimination at the Kaliningrad seaport company in connection with trade union membership...”
4. Other domestic proceedings concerning various complaints
(a) Deprivation of bonuses and loss of earnings
(b) Lifting of a disciplinary sanction against the eighteenth applicant
(c) Lifting of a disciplinary sanction for refusal to perform unskilled work
(d) Unlawful dismissal of the sixteenth applicant
(e) Unlawful disciplinary sanction
(f) Unlawful finding of responsibility for accident
(g) Unlawful demotion of the third applicant
(h) Restriction of access for trade union leaders to the port
D. Transfer of non-DUR-members to a new company
1. Establishment of a new company and transfer of personnel
2. Civil action concerning the transfer of personnel
3. Enforcement of the judgment of 24 May 2002
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
B. Code of Labour Laws of the RSFSR (of 25 September 1992)
C. Criminal Code of the Russian Federation (of 13 June 1996)
D. Trade Union Act (Law no. 10-FZ of 12 January 1996)
E. Civil Code of the Russian Federation (of 30 November 1994)
III. RELEVANT INTERNATIONAL DOCUMENTS
A. Council of Europe
Article 5 - The right to organise
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
B. The International Labour Organisation (“ILO”)
“Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”
“1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to -
(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.”
769. Anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade union.
818. The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed.
820. Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial.
835. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention.
702. While noting that the Baltic District Court judgement found that the allegations of anti-union discrimination had not been proven, the Committee notes that, since the court's decision to reinstate the [DUR] members at the re-subordinated production section of the TPK due to the nevertheless illegal grounds for their dismissal, the [Kaliningrad seaport] administration has persistently refused to fully implement this decision, despite repeated clarifications and confirmation from this and higher courts. In the light of these circumstances, the Committee feels bound to query the motivation behind the employer's acts, in particular its persistent refusal to reinstate dockers, all of whom happen to be members of the [DUR], despite repeated judicial orders in this respect. Further noting the Duma resolution expressing extreme concern about this situation and adding that the question of anti-union discrimination has been reasonably posed, the Committee therefore requests the Government to establish an independent investigation into the allegations of acts of anti-union discrimination and if it is proven that acts of anti-union discrimination were taken against [DUR] members, in particular as concerns the non-transferral to the subordinated production sectors at TPK in accordance with the court's decision to take all necessary steps to remedy this situation, to ensure reinstatement at the TPK, as requested by the courts, as well as payment of lost wages. Furthermore, noting that the dockers were once again dismissed and a new case was filed, the Committee requests the Government to keep it informed of the outcome of this case.
703. As concerns the means of redress against alleged acts of anti-union discrimination, the Committee recalls that the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 742). Noting that in the present case, the complainant has been addressing the different judicial bodies since 2001 with allegations of anti-union discrimination, which were, until May 2002 rejected on procedural grounds, the Committee considers that the legislation providing for protection against acts of anti union discrimination is not sufficiently clear. It therefore requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that complaints of anti-union discrimination are examined in the framework of national procedures which are clear and prompt...”
I. PRELIMINARY ISSUES
A. The complaints of the twentieth and thirty-first applicants
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ...
(c) ... it is no longer justified to continue the examination of the application....”
The Court finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application in respect of the twentieth and thirty-first applicants. Accordingly, the application should be struck out of the Court's list of cases insofar as it relates to these two applicants.
B. The Government's preliminary objection
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 11
Article 11 provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Scope of the State's obligations under Article 14 of the Convention taken together with Article 11 of the Convention
1. Submissions by the parties
(a) The applicants
(b) The Government
2. The Court's assessment.
B. Sufficiency of protection against discrimination on the ground of the applicants' trade union membership
1. Submissions by the parties
(a) The applicants
(b) The Government
2. The Court's assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand and five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement.
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 30 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President