Freedom of association includes the right to associate and not to associate. Associations may include trade unions, political parties and other organisations.
Public law bodies regulating the conduct of professions are not associations for the purposes of the guarantee.
States may require associations to register. However, refusal of registration must be justified. In Sidiropoulos v Greece, the applicants sought to register an organisation promoting Macedonian culture and ethnicity. It was refused on the basis that it sought to undermine the Greek state and the Greek identity of Macedonia. The European Court accepted there was a legitimate objective based on law but held that the refusal to register was not something that was necessary in a democratic society. Article 11 was breached.
The law requiring registration must be sufficiently clear. In Church of Scientology Moscow v Russia, the applicants applied on numerous occasions. It was never specified clearly what was required. Ultimately the deadline for registration passed. There was a breach of Article 11 because the domestic law was not sufficiently precise to allow its application to be foreseeable.
Association of Civil Servants and Union for Collective Bargaining and Others v. Germany concerned the Uniformity of Collective Agreements Act (Tarifeinheitsgesetz), which regulates conflicts that arise if there are several collective agreements in one “business unit” (Betrieb) of a company.The Court held that there had been no violation of Article 11 of the Convention, finding that there had been no disproportionate restriction on the applicants’ rights in the present case. The Court reiterated in particular that the right to collective bargaining as guaranteed under Article 11 of the Convention did not include a “right” to a collective agreement.
Preregistration if required must not be unreasonable or unduly complicated or a colourable exclusion from membership.
In the case of private and other associations states may satisfy themselves that the objectives of the Association accord with national law. They may require registration in some cases. However, only very strong reasons justify the restriction of freedom of association.
In Vona v Hungary an Association was dissolved which endangered public order and contemplated discrimination against the Roma minority. They held a military type parade in areas with Roma population majority with uniforms associated with World War II fascist organisations associated with massacres of Jews during the period.
Because a political party was involved, the state was subject to a high level of scrutiny in relation to the necessity for the restriction on the right of association. The European court held that it was within the margin of appreciation because it considered the Association to have gone beyond the boundaries of lawful and peaceful political activity.
The right to associate includes the right to join a trade union. The court held the state is obliged to protect these rights by law.
In Tum Haber Sen v Turkey, a public sector association was dissolved in the post and telecommunications sector. This was held to be a breach of Article 11. There was no compelling need to prohibit the formation of the union by the workers in question.
Sindicatul “Păstorul cel Bun” v. Romania 2013 (Grand Chamber) concerned the refusal by the Romanian State of an application for registration of a trade union formed by priests of the Romanian Orthodox Church. The Grand Chamber held that there had been no violation of Article 11 of the Convention, finding that in refusing to register the applicant union, the State had simply declined to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of denominational neutrality under Article 9 (freedom of thought, conscience and religion) of the Convention.
Manole and “Romanian Farmers Direct” v. Romania concerned the refusal of the Romanian courts to register a union of self- employed farmers which the first applicant wished to set up. The Court held that there had been no violation of Article 11 of the Convention, finding that the refusal to register the applicant union had not overstepped the Romanian authorities’ margin of appreciation as to the manner in which they secured the right of freedom of association to self-employed farmers. The Court, found in particular that under the Romanian legislation farmers’ organisations enjoyed essential rights enabling them to defend their members’ interests in dealings with the public authorities, without needing to be established as trade unions.
Tek Gıda İş Sendikası v. Turkey concerned the judicial authorities’ refusal to recognise the representation of the applicant trade union The Court held that there had been no violation of Article 11 of the Convention concerning the refusal to recognise the applicant trade union’s representation, finding that the method of counting the number of employees representing the majority in the impugned company had not affected the trade union’ core activity but rather constituted a secondary aspect. The Court held, however, that there had been a violation of Article 11, in the present case, on account of the fact that the State had failed to fulfil its positive obligation to prevent the employer from dismissing all the employees who were members of the applicant trade union by means of wrongful dismissals.
Taking Industrial Action
Article 11 recognises the right of associations to protect their interests. This includes the representation of workers and ultimately the right to take industrial action.
The court has not gone so far as to make mandatory the recognition of unions or require consultation with unions as a requirement under the Convention. Wilson & NUJ v UK. It was stated.
it must be possible for a trade union which is not recognised by the employer to take steps including if necessary, organising industrial action with a view to persuading the employer to enter into collective bargaining on those issues with union leaders which are important for its members ‘interests. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer’s or to take action in support of their interests on their behalf. If workers are prevented from so doing the freedom to belong to a trade union for the protection of their interests becomes illusory. It is the role of the state to ensure that trade union members are not prevented or restrained from using the union to represent them in attempts to regulate their relations with employers.
In Sorensen and Rasmussen v Denmark there was a challenge to a requirement to join a trade union by the terms of employment. The court held by majority that the state had failed to vindicate the applicant’s right not to join a trade union.
The court affirmed the right to bargain collectively as one of the essential elements of the right to form and join a trade union for the protection of one’s rights and interests protected by Article 11.
Schmidt & Dahlstrom v Sweden considered the right to strike. The applicants were union members who have not participated in strikes. They were denied certain retrospective benefits by reason of membership of a union perceived to be aggressive. The court commented that the right to strike could be subject to limitation. The denial of benefits paid to other trade union members did not breach Article 11.
In Sigurjonsson v Iceland the applicant challenged an obligation requiring them to be a member of the Association to operate a taxicab. Reversing earlier approaches which seem to mandate it under certain circumstances, it was held that the measure was disproportionate and thereby breached Article 11.
Issues with Members
National Union of Rail, Maritime and Transport Workers v. the United Kingdom 2014 The applicant – a trade union with a membership of more than 80,000 persons employed in different sectors of the transport industry in the United Kingdom – complained about statutory restrictions on the right to strike and, in particular, the ban on secondary industrial action (strike action against a different employer aimed at exerting indirect pressure on the employer involved in the industrial dispute).
The Court held that there had been no violation of Article 11 of the Convention, finding that there was nothing in the facts raised by the applicant union to show that the general prohibition on secondary strikes had had a disproportionate effect on their rights under Article 11.
Ognevenko v. Russia case concerned the applicant’s dismissal as a train driver for Russian Railways for disciplinary breaches, including taking part in a strike. to take up his duties. The Court held that there had been a violation of Article 11 of the Convention, finding that the applicant’s dismissal had been a disproportionate restriction on his rights. Such sanctions inevitably had a “chilling effect” on others who might consider striking to protect their interests.
Yakut Republican Trade-Union Federation v. Russia The applicant federation, a non-governmental organisation, was ordered to oust a grassroots union of working prisoners because of a statutory ban on the unionisation of prisoners. The Court held that there had been no violation of Article 11 of the Convention, finding that the domestic courts’ order to the applicant federation to expel the union of the working inmates had not exceeded the wide margin of appreciation available to the national authorities in that sphere, and that the restriction complained of had therefore been necessary in a democratic society.
Vlahov v. Croatia concerned the right of trade unions to control their membership vis-à-vis the right to freedom of association of would-be members, the applicant, a trade-union representative, complained that he had been convicted of preventing 15 would-be members from joining his union. The Court held that there had been a violation of Article 11 of the Convention, finding that the interference complained of had not been necessary in a democratic society. It reiterated, in particular, certain principles in its case-law under Article 11, notably that trade unions had the right to control their membership, but that a balance had to be achieved to ensure fair treatment and to avoid abuse of a dominant position.
State Sector Unions
Matelly v. France case concerned the absolute prohibition on trade unions within the French armed forces. The Court held that there had been a violation of Article 11 of the Convention. The Court concluded that, while the exercise by military personnel of freedom of association could be subject to legitimate restrictions, a blanket ban on forming or joining a trade union encroached on the very essence of this freedom, and was as such prohibited by the Convention.
In Demir & Baykara v Turkey ‘the court indicated that the members of the administration of the state may be subject to restrictions over and above those applying elsewhere. Article 11 provides that it shall not prevent the imposition of lawful restrictions on the exercise of the right by members of the armed forces or the police or the administration of the state.
Junta Rectora Del Ertzainen Nazional Elkartasuna (ER.N.E.) v. Spain concerned the inability of the members of a police officers’ trade union to exercise the right to strike. The Court held that there had been no violation of Article 11 taken alone or in conjunction with Article 14 (prohibition of discrimination) of the Convention. The Court noted that the specific nature of these agents’ duties warranted granting the State a lot of room for manoeuvre (“a wide margin of appreciation”) to regulate certain aspects of the trade union’s activities in the public interest, without however depriving the union of the core content of its rights under Article 11.
In Demir & Baykara v Turkey ‘it indicated that the members of the administration of the state may be subject to restrictions over and above those applying elsewhere. Article 11 provides that it shall not prevent the imposition of lawful restrictions on the exercise of the right by members of the armed forces or the police or the administration of the state.
In Greande Oriente dItalia di Palazzo Giustiniani v Italy a prohibition on membership of Freemason by local government officials did not breach the convention.
In Vogt v e Germany dismissal of a teacher who was a member of the Communist party breached the conventions. The membership did not affect her teaching and as disproportionate.
Chassagnou v France concerned the right not to join the Association. Persons concerned had been obliged to join a hunting association, despite being opposed to hunting. The grand chamber held there was a breach of Article 11. To compel a person by law to join an association /fundamentally against his conviction to be a member and to oblige him to transfer rights over the land he owns so that the Association question can obtain objectives of which he disproves cannot be considered proportionate to the aim pursued.
In Olafsson v Iceland the applicant was required to pay fees to employer’s association of which he was not a member with opinions he did not agree with. Article 11 was violated. Although the state had a considerable margin of appreciation and there was a lack of transparency and accountability.
In the United Communist Party of Turkey v Turkey, the court confirmed that the guarantee applied to political parties. The party was dissolved because of the word Communist and a claim to refer to the Turkish and Kurdish nations in its manifesto. Its objectives were political and non-violent, and the court found the dissolution to breach Article 11.
In Refah Partsi v Turkey a party which had been in the coalition government with 22% of the national vote the largest party proposed to form a separate legal system based on religious belief and to establish Islamic law as a system of law. The dissolution of the party was upheld.
A political party may promote a change in the legal and constitutional structures of the state on conditions; firstly, the means used to that end must be legal in a democratic society; secondly, the changes proposed must be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite violence and put forward a policy which fails to respect democracy and is aimed at the destruction of the democracy and the voting rights and freedoms recognised in a democracy cannot claim Convention’s protections against penalties imposed on those grounds.
In view of the very clear link between the Convention and democracy, no one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise which requires various concessions by individuals or groups of individuals who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability for the country as a whole.
In Piroglu &Karakaya v Turkey the applicant was convicted after refusing to annul membership of 13 members of a branch of a human rights Association. The members had been taken into custody but had not been charged or convicted. The European court held there was no legitimate reason requiring the dissolution of the Association.
In Batasuna v Spain a party was dissolved on the basis it pursued undemocratic objectives. The court indicated that justification depended on whether there was plausible evidence that the risk to democracy supposing it had been proved to exist was sufficient and reasonably imminent and whether the … picture of society conceived and advocated by the party was incompatible with the concept of a democratic society. The court accepted evidence linking the party to an organisation which committed acts of political violence and accepted that in the state’s ability to dissolve the party.