European Court of Human Rights

Information Note on the Court’s case-law No. 179

November 2014

Hrvatski liječnički sindikat v. Croatia - 36701/09

Judgment 27.11.2014 [Section I] See: [2014] ECHR 1337

Article 11

Article 11-1

Freedom of peaceful assembly

Trade union prevented from holding a strike for almost four years: violation

Facts - The applicant was a trade union of medical practitioners. In 2004 it and other trade unions concluded a collective agreement for the health-care sector with the Government. On the same day, the applicant union and the Government also concluded another collective agreement, which formed an annex to the previous one, for the medical and dentistry sector. In 2005 Croatian doctors approved the Annex through a referendum, the validity of which was, however, not recognised by the authorities. The applicant then announced a strike aimed at enforcing the Annex, having the results of the referendum recognised, and concluding a new collective agreement for the medical and dentistry sector. However, the County Court banned the applicant union from holding the strike on the ground that the Annex was invalid. The applicant’s appeal to the Supreme Court was dismissed, as was its complaint to the Constitutional Court. In parallel civil proceedings brought by other trade unions the Annex was declared null and void in 2008 because it had not been entered into by all the trade unions that had concluded the main agreement.

Law - Article 11: The ban on holding the strike constituted an interference with the applicant union’s freedom of association, which interference was prescribed by law and pursued the aim of protecting the rights of other trade unions to parity in the collective bargaining process.

As regards proportionality, the Court noted that the domestic courts had considered that they were not required to examine whether a strike could be called to demand the conclusion of a new collective agreement, as the applicant union’s representative had stated that this was a “subsidiary” argument to be considered in the event of the Annex being declared invalid. Yet it had been of particular importance to address that ground for the strike because the domestic law actually allowed industrial action in the absence of a collective agreement. As a consequence of the domestic courts’ decision, the applicant union had been prevented from holding a strike between April 2005 and December 2008. In the absence of any exceptional circumstances, the Court found it difficult to accept that upholding the principle of parity in collective bargaining was a legitimate aim capable of justifying the deprivation of a trade union for three years and eight months of the most powerful instrument it had to protect the occupational interests of its members. That was especially so in the present case as the applicant union had not been allowed to strike to put pressure on the Government to grant doctors and dentists the same rights already agreed on in the Annex, which was invalidated on formal grounds only. Therefore, the interference in question could not be regarded as proportionate to the legitimate aim it had sought to achieve.

Conclusion: violation (unanimously).

Article 41: The finding of a violation constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage.

(See also the Factsheet on Trade union rights)

 

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