ECHR judgment of November 20, 2018 in the case of Ognevenko v. Russia (application No. 44873/09).
In 2009, the complainant was assisted in preparing a application. Subsequently, the application was communicated to the Russian Federation.
The case has successfully examined the train driver’s application about his dismissal after participating in a strike in connection with the prohibition to participate in strikes of certain categories of railway workers established by the legislation of the Russian Federation. The case has violated the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was a train driver on the railway and a member of one of the trade unions. His trade union began negotiations with JSC Russian Railways (hereinafter referred to as Russian Railways) in order to raise wages and introduce long-term bonuses for relevant employees. The negotiations were unsuccessful, in April 2008 the applicant took part in the strike: he arrived at his workplace, but refused to fulfill his labor duties. Referring to the ban on participation in strikes for certain categories of railway workers established by the legislation of the Russian Federation, RZD considered the applicant’s refusal to work during the strike illegal and dismissed him for repeatedly refusing to perform his job duties.
QUESTIONS OF RIGHT
Regarding compliance with Article 11 of the Convention. The right to participate in the strike, which falls under the protection of Article 11 of the Convention, was an important aspect of the right to freedom of association and the right to form a trade union, as well as the right of such a trade union to be heard and to conduct collective bargaining. These arguments were confirmed in the relevant international documents. Supervisory authorities of the International Labor Organization (hereinafter - the ILO) recognized the right to strike as a necessary consequence of the right to association. The right to strike is also enshrined in the European Social Charter.
The authorities claimed that the railway provided important services and that certain categories of railway workers could be prohibited from participating in strikes if they threatened the country's defense, state security, or the lives and health of people. Considering the important role of rail transport in stimulating the economy and other interests of people, the authorities of the Russian Federation considered that any circumstances that have negative consequences for these interests justified the ban on participation in strikes for certain categories of workers. With regard to the strike that took place in April 2008, the authorities of the respondent government referred to the alleged delays in the carriage of passengers and baggage to destinations and to the danger of crowds on the railway station platforms.
At the international level, there is a clear consensus that, as in the cases of “members of the armed forces, the police or public administration”, restrictions on the right to strike may be imposed on workers providing essential services to the public. However, neither the ILO nor the European Committee of Social Rights (hereinafter referred to as ECSR) considered transport in general and the railway, in particular, as providing extremely important services, the interruption of which could lead to a threat to the life or health of a part of the population. Both the ILO and the ECSR were systematically criticized by the authorities of the Russian Federation for banning strikes by railway workers. The European Court found no reason to deviate from this international approach to the definition of essential services and to recognize that railway transport is one of those.
Even assuming that the railway provided extremely important services, such serious restrictions as a complete legislative ban on strikes against certain categories of railway workers still require the authorities of the respondent state to justify their necessity. If stopping the movement of railway transport could have negative consequences for the economy, it would not be a sufficient justification for a total ban on strikes against certain categories of railway workers.
The Government did not provide evidence of the alleged damage caused by delays in the delivery of passengers and goods at their destination. As for the crowds on the train station platforms, the European Court also did not have evidence that the regulation of passenger access to the platforms was beyond the control of Russian Railways due to the strike. The authorities of the Russian Federation did not provide any information to explain the general approach chosen by the federal legislator in favor of prohibiting certain categories of railway workers from participating in strikes. The authorities of the respondent state did not prove that they had ever assessed the risk of abuse if this prohibition had been lifted. There was also no information about whether the authorities of the Russian Federation considered other options besides a total ban on the participation of certain categories of workers in strikes.
See the opposite situation in the European Court of Justice in the case of the Federation of Trade Unions of Workers of Enterprises on the High Seas and others v. Norway (Federation of Others v. Norway) of June 27, 2002, complaint No. 38190/97, to which the authorities of the respondent State submitted extensive comments in support of their decision to end the strike of oil platform workers that lasted for 36 hours.
The Government did not inform the Court of any guarantees established by them to compensate for the workers’s inability to participate in the strike. After the management of the Russian Railways rejected the relevant requirements, the trade union in which the applicant was a member decided to go on strike. The Government did not prove that the union had other means, such as conciliation or arbitration, to protect the interests of its members. In addition, the claimant’s union informed the Russian Railways about the strike in advance and provided a minimum amount of services during this strike. The Government did not deny this fact or the compliance of these minimum services with the requirements of the circumstances.
The strike itself was not recognized as illegal either by the courts of the Russian Federation or by other independent bodies. By joining it, the applicant exercised his right to freedom of association. However, when the applicant challenged his dismissal in the courts of the Russian Federation, they limited themselves to considering compliance with the relevant legislation of the Russian Federation and, as a result, could not match the applicant's right to associate with the public interests opposing him.
The applicant's participation in the strike was recognized as a violation of discipline, which, given the previous violation, led to the most severe punishment - dismissal. Such sanctions inevitably had a “deterrent effect” on trade union members who took part in events such as strikes to protect their professional interests. The applicant's dismissal was a disproportionate restriction of his right to association.
In the case of a violation of the requirements of Article 11 of the Convention (it was adopted by six votes "for" with one - "against").
In application of Article 41 of the Convention. The Court awarded the applicant EUR 6,000 in respect of non-pecuniary damage and EUR 2,000 in respect of pecuniary damage.