CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 février 1971

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   I. Whereas the facts of the remaining part of the application as they have been submitted by the applicant may be summarised as follows:   The applicant is a citizen of the United States, born in 1931 and resident in F. in Ireland.   In August 1962 the applicant was given employment as an electrician with the   ... Board. While he was working at a generating station at B., he was elected shop steward for the ... Trade Union. During this period he organised an unofficial strike at the site in order to protest against the failure of the Union to look after the interests of the workers. In this connection, the applicant makes no complaints concerning the relations between him and the management.   In July 1963 the applicant was transferred to F. Power Station, where after a short time, he was also elected shop steward. According to him, relations between the management and the workers were poor and some of the workers were political trouble-makers. There was frequent talk of an unofficial strike among some of the men. At a meeting called by the applicant, it became apparent, however, that the majority of the men were opposed to a strike as the applicant had hoped.   At a later date the chargehand, Mr. G., approached the applicant to find out whether the latter would permit the use of helpers on work which would normally be done by skilled workers. The applicant considered that as a shop steward he had no power to allow these men to do skilled work and therefore refused the request. Mr. G. allegedly made repeated attempts to let him use non-union members on skilled work, and also informed the applicant that the assistant electrical engineer, Mr. P., was in favour of this as work was falling behind. When the applicant persisted in his refusal, Mr. G. showed that he was displeased. On several occasions Mr. G. asked the applicant to resign his office as shop steward and let another man take over. He also indicated that the applicant would be certain of permanent employment with the Board for the rest of his life if he resigned. On other occasions Mr. G. threatened the applicant that his job was in danger if he did not consent. During the winter of 1963, a dispute arose between the applicant and Mr. P. concerning the condition of the toilets at the station. The workers agreed on a ban of overtime, but the ban was lifted already on the following day. The toilet question, however, remained unsolved.   About Christmas 1963 the applicant noticed that Mr. P. and Mr. G. made frequent use of unskilled labour on certain skilled work. On .. January 1964, the applicant was informed that he was redundant and would be dismissed on .. January. Before leaving the power station he resigned as shop steward. The workers then elected as his successor the man supported by Mr. G. He considered, however, that the reason for his dismissal was a pretext to get rid of him and therefore complained to the union. Three weeks later he was reinstated at his job at F. He was told that extra work had been found but, according to the applicant, this was not the case since this work was provided for in the original plans of the power station. Shortly afterwards, the applicant fell ill and stayed at home for a few months.   When he returned to F.., the rest of the workers were transferred from the site and the applicant was left alone on the site for the winter of 1964-65. The Board removed the canteen and toilets to another site and the applicant had to stay in a large wooden box which did not even keep the rain out.   After the applicant had left F. an order for a quantity of copper wire was placed in his name. This gave rise to an inquiry at which the applicant was charged with having used the Board's transport for his private business (1). ------------------------------- (1)   Insofar as the applicant complained that the manner in which the Board carried out an inquiry concerning this purchase violated Article 5 of the Convention, this complaint was rejected in the partial decision of 24 July 1970, as being manifestly ill-founded. The question whether the Government was responsible under the Convention for any acts of the Board was expressly left open. -------------------------------- In March 1965 the applicant was transferred to A. where his work mainly consisted of washing the grease off old cookers and washers and installing these second-hand parts into new ones. A few days later the applicant resigned as he feared he would only be given unpleasant jobs.   The applicant originally indicated that he had complained to the Taoiseach (Prime Minister), the Minister of Transport and Power, the Commission on Industrial Relations in the Board, the Union and other authorities or bodies in order to get redress. All these attempts were, however, to no avail. He also consulted two firms of solicitors and counsel who refused to bring any action on his behalf. Moreover, he informed the police that he would not pay his car tax until his case was attended to.   The applicant alleges a violation of Article 11 of the Convention in that he was "improperly restricted from carrying out his duties as shop steward at F. by the management and pressure was brought on him to permit a serious breach of trade union principles".   II. HISTORY OF PROCEEDINGS   The applicant originally made nine "charges" against the respondent Government alleging violations of Articles 3, 5, 8, 9, 11 and 13 of the Convention.   While declaring the remainder of the application inadmissible for various reasons, the Commission decided on 24 July 1970 to communicate to the respondent Government the part of the application in which the applicant had complained of interference with the exercise of his duties as a shop steward for the Union during his employment at the Board. Considering that this complaint raised a question under Article 11 of the Convention, according to which everyone has the right "to freedom of association with others, including the right to form and to join trade unions for the protection of his interests", the Commission invited the Government to submit its observations on the admissibility of this part of the application, and in particular, on the following questions:   -   the responsibility of the Government under the Convention for acts    of the Board; -   the existence of any domestic remedies with regard to the    applicant's complaints; -   the facts alleged by the applicant in this connection.   The Government submitted its observations on .. September 1970 and the applicant submitted his observations in reply on .. October 1970.   III. SUBMISSIONS OF THE PARTIES   1. As to the facts   In its observations the respondent Government has not discussed in detail the facts alleged by the applicant. The Government has submitted, however, that the Board had been consulted in this matter and had stated that it was fully satisfied that there was no interference with the exercise of the applicant's duties as a shop steward. In his reply, the applicant has pointed out that the Government has not given any information as to how the Board had come to this conclusion, in particular whether it was the result of an impartial inquiry.   2. As to the Commission's competence ratione personae   The respondent Government has submitted that the Board is a Body established by a statute which sets out its essential features and functions, and financed, at least in the first instance by public funds. Referring to the relevant sections of the Electricity (Supply) Act 1927, the Government has stated that it is clear from these provisions that the Board is solely responsible for matters relating to exercise of its functions, including the relationship between the Board and its employees. Accordingly, the applicant's complaint is in respect of alleged actions by or on behalf of a body independent of the Government and the application does not therefore reveal any grounds on which it might be held that the direct responsibility of the Government for these alleged actions is involved. It is submitted, therefore, that insofar as the petition relies on direct interference by the Government with the applicant's rights under the Convention ratione personae and is, therefore, inadmissible under Article 27, paragraph (2), of the Convention as being incompatible with the provisions of that Convention.   In his observations in reply, the applicant maintains that the Government must be considered to be responsible under the Convention for the acts of the Board. In this connection, he refers to a letter from the Minister of Transport and Power of 8 November 1967 in which it was said, inter alia, that the Minister exercises general supervision over the policy of the Board. The applicant has also pointed out that the Board, including its Chairman, is appointed by the Government.   3. As to the Commission's competence ratione materiae   The Federal Government has submitted that the facts such as have been alleged by the applicant would not constitute a deprivation of any right protected by Article 11 of the Convention. Referring to the terms of paragraph (1) of this Article, the Government emphasises that the applicant does not allege that he was discouraged from forming or joining a trade union or from exercising the other rights specifically set out in the paragraph, or that the pressure he claims was brought to bear on him, the offers of promotion, the treats of dismissal, subjection to unpleasant working for the purpose of persuading him to terminate his membership of his union, or because he refused to do so. On the contrary, he specifically claims that the alleged actions were directed towards persuading him to permit breaches of trade union principles or to relinquish the office of shop steward. It is submitted that (on interpretation of Article 11) it must be held that the applicant's allegations are based on a claim to a right which is not protected or guaranteed by Article 11 (or any other provision) of the Convention. The application must accordingly be held inadmissible under Article 27, paragraph (2) as being incompatible with the provisions of the Convention. Conversely, the petition discloses no appearance of a violation of one of the rights and freedoms guaranteed by the Convention and is therefore inadmissible under Article 27, paragraph (2) as being manifestly ill-founded.   The applicant has replied that the Government's argument would mean that there is a right to join a trade union but no right to have an administration (of which a shop steward forms part) to protect the interests of the union. Written right without proper administration would be of little use and any denial of the right of a fair administration would constitute a denial of the right to protect one's interests and therefore a violation of Article 11.   4. As to the existence of adequate protection under domestic law   In addition to and independent of the above submissions, the respondent Government contends that there are further grounds on which the application should be declared inadmissible. As the alleged acts of which the applicant complains are not claimed to have been committed in circumstances involving the direct responsibility of the Government, a breach of the Convention by the Government in connection with thee acts may not be established otherwise than by showing either (a) that the law does not protect a right or freedom guaranteed by the Convention which has been infringed by the alleged acts, or (b) that there is not adequate remedy for enforcing the law's protection in this respect.   As regards (a) the Government submits that the rights of Article 11 of the Convention are protected in Irish law primarily by the Constitution or Ireland which provides as follows at Article 406:   "1.   The State guarantees liberty for the exercise of the following rights, subject to public order and morality:   i. The rights of the citizens to express freely their convictions and opinions...   ii. The right of the citizens to assemble peaceably and without arms.   iii. The right of the citizens to form associations and unions.   Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.   2. Laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination."   These regulations are also provided for in the Trade Unions Acts and by other statutory and common law rules, which incidentally may not conflict with the Constitution on pain of invalidity of the conflicting non-Constitutional provision. The restrictions placed by law on the exercise of these rights must therefore come within the proviso at paragraph iii. above and in fact also come within the restrictions permitted by paragraph 2 of Article 11 of the Convention. Restrictions of or interference with a person's right to form and to join trade unions for the protection of his interests in any other way is therefore unlawful under Irish law. It is accordingly submitted that Irish law adequately protects the rights to form and join trade unions as guaranteed by Article 11 of the Convention.   On the question of (b), an adequate remedy, the Government points out that the relevant claims of the applicant appear to be that he sought assistance from his trade union, that he complained to the Committee of Industrial Relations in the Board, that he wrote to the Taoiseach (Prime Minister), the Minister for Transport and Power and Mr. C. a Member of the Dail (T.D.), and that he was anxious to bring his case to court and consulted two solicitors and counsel who refused to act for him. It is submitted that even if these claims are substantiated the applicant has not discharged the burden of proof lying on him to establish that there is no adequate remedy for protection of the right he claims has been infringed.   The Government states that it is open to any person whose rights are being unlawfully interfered with to seek an injunction from the courts, i.e. an order addressed to an offending party directing him to refrain from specified unlawful acts. The order is enforceable under penalty of imprisonment. In the circumstances of this case as alleged by the applicant, several other remedies both of a judicial and non-judicial nature would be open to him. In the first place he could lodge a complaint with the superior officers of persons who are parties to persuasion by intimidation or bribery or who are responsible for unsuitable working conditions. He could also seek the intervention of his trade union to protect his interests in his relationship with his employers, including his relationship with his employer's servants or agents. Apart from such non-judicial remedies the courts have, of course, jurisdiction, not only to grant injunctions as already referred to in respect of unlawful acts, but also to entertain actions for such matters as loss of wages, wrongful dismissal, breach of contract, etc., any or all of which might be established by the facts alleged in the petition. Moreover, his allegations of intimidation and bribery would form the basis of criminal proceedings against the persons concerned if adequate proof were forthcoming, and the applicant could make a complaint to the police authorities with a view to having an end put to these activities in this way.   The applicant does not say in his application that he made any complaint to the police authorities or to the superior officers of the offending parties. Apparently he wrote to the Minister for Transport and Power some years after the acts of which he complains and was informed that the Minister could do nothing about his complaint and would pass the letter to the Board. The petition does not give any clear indication of the contents of the letter to the Minister or say what was the reaction of the Board other than that he was not employed by the Board subsequently. He also says he wrote to the Taoiseach (Prime Minister) and Mr. C. without indicating the contents of his letters or when he wrote them. However, these persons would not have any function to intervene personally in his relations with the Board either. He also says he had resort to the Committee of Industrial Relations in the Board without success, but does not indicate the nature of his complaint to the Commission, how it progressed, or details of the eventual outcome.   The applicant claims that he sought the assistance of his trade union, but it is not at all clear from his statement when or how often he did so or in respect of which of his complaints. He is apparently satisfied that the trade union was responsible for his re-employment by the Board in 1964 some weeks after his employment had been terminated on grounds of redundancy. Apparently at some later stage he became dissatisfied with the trade union's efforts, and ultimately he says it refused to take any other measures on his behalf. So far as the Government are aware he has not indicated the reasons given by the trade union for this decision, what measures had been taken by it on his behalf prior to this decision, or the results of such measures.   The applicant claims that he was anxious to bring his case to the courts but that he failed to do so. In this connection, he says he consulted two firms of solicitors and counsel and that they refused to act for him. So far as the Government are aware, he has not explained in respect of which complaints he consulted these solicitors and counsel, or on what grounds they refused to act for him or whether he consulted other solicitors after such refusals. There is no provision for legal assistance in civil proceedings in Ireland, and in this respect attention is drawn to the declaration made by the Government of Ireland, on ratification of the Convention, to the effect that they did not interpret Article 6 (3) (c) of the Convention as requiring the provision of free legal assistance, to any wider extent than was then provided in Ireland. However, although a solicitor or counsel may refuse to act for a person who is either unable or unwilling to pay for his services, it is a well established practice amongst solicitors and counsel to act for a client who is unable to pay, and in particular to undertake proceedings on behalf of a penurious client where it appears that the client has a good cause of action. In this connection it should be understood that under the rules governing the legal professions in Ireland counsel may not accept instructions from a client except through a solicitor. Accordingly, if counsel refused to act for the applicant it may have been because he was approached directly. More likely a refusal would follow consideration by counsel of the applicant's claims as submitted by one of the solicitors consulted (who presumably would have undertaken the task gratuitously) and arrival at the conclusion that the applicant did not have a good cause of action. It cannot, therefore, be assumed that the solicitors mentioned by the applicant or counsel refused to act for him merely because he was not in a position to finance the proceedings. Moreover, it should be noted that a litigant had a right of audience before the courts in his own case, and that therefore a person is not prevented from taking an action merely by failure to secure professional representation.   The Government therefore submits that it is clearly established not only that Irish law protests everyone's right to freedom of association with others, including the right to form and join trade unions for the protection of his interests (whether or not the right includes the right to exercise the functions of a shop steward) as guaranteed by Article 11 of the Convention, but also that there are adequate remedies for enforcement of this protection. Accordingly, the Government contends that, as its obligation under the Convention in respect of actions not involving its direct responsibility do not extend beyond ensuring that this is the state of the law and of availability of remedy, the petition against it should also be held inadmissible under Article 27, paragraph (2), of the Convention as being manifestly ill-founded.   The Government further submits that the above demonstrates that all the domestic remedies have not been exhausted by the applicant as required under Article 26 of the Convention and that the application is also to be rejected under Article 27 (3).   In his observations in reply the applicant refers to the evidence he has submitted in support of his claim. He states that the gravity of the case did not become apparent until after his dismissal in January .. when he complained to the officer in charge without result. The applicant emphasises that, in order to apply for a court injunction, he would have to produce evidence and this was not possible as all witnesses were removed before any improper suggestions were made. Moreover, it would have been disastrous for him to start proceedings for an injunction against his superiors in the Board.   In support of his contention that he did complain to the police, the applicant refers to a letter of 3 December 1967, written by him to the Police Superintendent at L. complaining of his dismissal and stating that he would not pay the duties for his car and driving licence until his complaints had been investigated. In his reply, the Superintendent regretted that he could not assist the applicant in this matter.   The applicant also refers to a letter written by him to the Minister of Transport and Power on 28 August 1967 which, according to him, gave a detailed account of what had happened. This letter was passed on to the Board which merely replied on 18 October 1967, that there were no vacancies although the Board had shortly before advertised for electricians. As regards his complaint to the Committee on Industrial Relations in the Board, the applicant refers to a letter informing him that this Committee had not competence to deal with individual cases.   The applicant has, however, submitted the final report of this Committee which was published in 1969. In this connection, he points out that the Committee had found "dangerous complacency" on the side of the Board and the unions.   The applicant states that he has also recently written to the Trades Union in order to obtain copies of letters from the Board in their possession which would show that there was no redundancy at the time of his dismissal. His request has, however, remained without reply. In addition, he has asked the Board itself to inform him of the number of other electricians dismissed in his region on 3 January 1964 for supposed redundancy.   As regards his attempts to take legal action, the applicant gives further details in his observations. According to him, he first approached one firm of solicitors in November 1966, but was then advised not to pursue his case. In November 1968, the applicant was introduced to a T.D. (Member of the Dail) who was a senior counsel by profession and who referred him to another firm of solicitors. Although the applicant accordingly put the whole case before these solicitors and informed them that he would himself raise the money for their services, he was again told that he had no case against anyone and advised to drop the matter. The applicant submits that he does not himself possess the legal skill required for bringing a court action against a State firm and would be at a disadvantage against the best lawyers his opponent could provide.   In the applicant's opinion, his two experiences of the legal profession show that the administration of law in Ireland does not protect the rights under the Convention. He considers that consequently he has exhausted all remedies available to him.   THE LAW   Whereas, by its partial decision on the admissibility of the application of 24 July 1970 the Commission, while declaring the remainder of the application inadmissible, decided to invite the respondent Government to submit its observations on the question of admissibility of the applicant's complaint concerning interference with his duties as a shop steward during his employment at the Board;   Whereas, in this connection, the Commission stated that this complaint raised a question under Article 11 (Art. 11) of the Convention, according to which everyone has the right "... to freedom of association with others, including the right to form and to join trade unions for the protection of his interests"; whereas, the Commission also recalled that it results from Article 19 (Art. 19) of the Convention that the sole task of the Commission is to ensure the observance of the engagements undertaken in the Convention by the High Contracting Parties, being those Members of the Council of Europe which have signed the Convention and deposited their instruments of ratification; whereas, moreover, it appears from Article 25 (1) (Art. 25-1) of the Convention that the Commission can properly admit an application from an individual only where that individual claims to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention where the Party in question has accepted this competence of the Commission;   Whereas the Commission considered that an examination of the file at that stage did not give the information required for determining the question of the admissibility of this part of the application, particularly as regards the responsibility in this case of the respondent Government under the Convention;   Whereas the respondent Government has submitted, in its observations on admissibility, that "the Board is a State-sponsored body; that is a body established by a Statute which sets out its essential features and functions and financed, at least in the first instance by public funds, but granted by the statute independence in its operations";   Whereas, in the Government's submission, it is clear that the Board is solely responsible for matters relating to exercise of its functions, including the relationship between the Board and its employees;   Whereas, accordingly, the applicant's complaint is in respect of alleged actions by or on behalf of a body independent of the Government and such actions cannot involve the direct responsibility of the Government under the Convention;   Whereas the applicant has submitted in his observations in reply that the respondent Government should be considered to be responsible under the Convention for the acts of the Board; whereas in this connection he refers inter alia, to a statement by the Minister of Transport and Power according to which the Minister exercises general supervision over the policy of the Board;   Whereas the Commission does not find it necessary in the present case to determine generally the question as to what extent acts of the Board or its officers could entail the responsibility of the respondent Government under the Convention; whereas for the present purposes it is sufficient to note that, while the Government exercises, at least, general supervision over the policy of the Board, the day to day administration is solely in the hands of the Board;   Whereas the Commission considers that the acts alleged by the applicant clearly fall within the domain of such day to day admissibility for which the Government is not directly responsible;   Whereas the Commission has next considered the respondent Government's submission that, insofar as the acts alleged have not been committed in circumstances involving the direct responsibility of the Government, a breach by the Government in connection with these acts may not be established otherwise than by showing either that the domestic law does not protect a right or freedom guaranteed by the Convention which has been infringed or that there is no adequate remedy for enforcing the law's protection in this respect;   Whereas, in considering this argument the Commission finds it necessary first to examine the respondent Government's further submission that the facts, such as they have been alleged by the applicant, would not constitute a deprivation of any right protected by Article 11 (Art. 11) of the Convention; whereas the Government emphasises that the applicant does not allege that he was discouraged from "forming" or "joining" a trade union or from exercising the other rights specifically set out in paragraph (1) of that Article (Art. 11-1); that, in particular, he does not suggest that the pressure allegedly brought to bear on him by means of offers of promotion, threats of dismissal, subjection to unpleasant working conditions, and his dismissal and forced resignation were inflicted on him for the purpose of persuading him to terminate his membership of his union, or because he refused to do so;   Whereas the Government points out that the alleged actions were, on the contrary, directed towards persuading him to permit breaches of trade union principles or to relinquish the office of shop steward;   Whereas, in the submission of the Government, the applicant's allegations are thus based on a claim to a right which is not protected or guaranteed by Article 11 (Art. 11) of the Convention;   Whereas the applicant has submitted in reply that the recognition of the right to join a trade union would be of little use unless the trade union was also entitled to a proper administration;   Whereas the Commission, without entering into the general problems of an interpretation of the concept of "freedom of association" in relation to trade unions, finds that the provisions of Article 11 (Art. 11) of the Convention in this respect must be given a wider interpretation than the one that has been suggested by the respondent Government;   Whereas in this connection it is clear both from the text of Article 11 (1) (Art. 11-1) and from the preparatory work on the Convention that "freedom of association" within the meaning of this Article included the right to form and to join a trade union; whereas, however, the text of Article 11 (Art. 11) indicates that freedom of association includes, in relation to trade unions, other elements that the right to "form" and to "join" a trade union; whereas the Commission considers that, when interpreting the meaning and scope of the notion of freedom of association in Article 11 (Art. 11) in relation to trade unions, regard should be had to the meaning given to this term in the International Labour Organisation Convention of 1948 (No. 87) concerning Freedom of Association and Protection of the Right to Organise; whereas, among the elements of the freedom of association, as enunciated in Part I of the 1948 Convention, Article 3 (Art. 3) of that Convention includes the right of workers' and employers' organisations "to elect their representatives in full freedom" and "to organise their administration"; whereas it may also be noted that, with the exception of Turkey, all the High Contracting Parties to the European Convention on Human Rights have also ratified the 1948 Convention; whereas, furthermore,   the preparatory work on the European Convention on Human Rights shows the affinities between Article 11 (Art. 11) of the Convention and Article 22 of the United Nations Covenant on Civil and Political Rights;   Whereas paragraph 3 of Article 22 of the Covenant expressly refers to the 1948 Covenant;   Whereas, therefore, the Commission cannot share the opinion of the respondent Government that threats of dismissal or other actions intended to bring about the relinquishment by an employee of the office of shop steward held by him, as alleged in the present case, could not in principle raise an issue under Article 11 (Art. 11) of the Convention;   Whereas the Commission considers that, on the contrary, such interference could, in certain circumstances, seriously restrict or impede the lawful exercise of the freedom of association in relation to trade unions which that Article aims at securing;   Whereas, having reached this conclusion, it then remains to be considered whether the respondent Government has discharged its obligation under the Convention to ensure   that the domestic law offers a remedy for the alleged violation of Article 11 (Art. 11) of the Convention;   Whereas, in this connection, the respondent Government has contended "that Irish law protects everyone's right to freedom of association with others, including to form and to join trade unions for the protection of his interest (whether or not the right includes the right to exercise the office of a shop steward)"; whereas the Government has further submitted that the applicant could have availed himself of a number of remedies in respect of the matters of which he complains; whereas, in particular, the Government has pointed out that the acts alleged would involve unlawful acts, in respect of which the applicant could seek an injunction from the courts, and that the courts would also have jurisdiction to entertain actions for such matters as loss of wages, wrongful dismissal, breach of contracts, etc.;   Whereas the applicant has not contested the Government's submissions as regards the state of domestic law and the availability of such remedies on any other ground than that he consulted two firms of solicitors who advised him that he had no cause of action and that he did not himself possess the legal skill required for bringing a court action against the Board;   Whereas the Commission is satisfied that, under Irish law, the applicant could, in any event, have brought an action against the Board before the competent courts on one or more of the grounds mentioned above, as submitted by the respondent Government, and thereby obtained an effective remedy in respect of the matters of which he now complains;   Whereas, accordingly, the Commission finds that an examination of the present case cannot lead to the conclusion that there was any failure on the part of the respondent Government to ensure   that there was an effective remedy for the violation of Article 11 (Art. 11) of the Convention alleged by the applicant; whereas it follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   Now therefore the Commission DECLARES THE REMAINDER OF THIS APPLICATION INADMISSIBLE