CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juillet 2009

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s9FE6B50C { width:200.28pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIFTH SECTION       CASE OF DANILENKOV AND OTHERS v. RUSSIA   (Application no. 67336/01)           JUDGMENT   This version was rectified on 23 April 2010 under Rule 81 of the Rules of the Court   STRASBOURG   30 July 2009   FINAL   10/12/2009   This judgment 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:   Rait Maruste, President,   Renate Jaeger,   Karel Jungwiert,   Anatoly Kovler,   Mark Villiger,   Isabelle Berro-Lefèvre,   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: PROCEDURE 1.     The case originated in an application (no. 67336/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty-two Russian nationals, listed below (“the applicants”), on 9 February 2001. All the applicants are members of the Kaliningrad branch of the Dockers' Union of Russia (“the DUR”). 2.     The applicants, who had been granted legal aid, were represented by Mr   M. Chesalin, Chairman of the DUR in Kaliningrad seaport. The Russian Government (“the Government”) were represented successively by Mr   P.   Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged, in particular, that their right to freedom of association and freedom from discrimination had been breached and that they had not had effective domestic remedies in respect of their discrimination complaint. 4.     On 19 October 2004 the application was declared admissible. 5.     The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Court decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants are: (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 Yurievich Korchazhkin [1] , 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 8.     A branch of the Dockers' Union of Russia was established in 1995 in Kaliningrad seaport as an alternative to the traditional Maritime Transport Workers' Union. The branch was officially registered with the Kaliningrad Justice Department on 3   October 1995. 9.     The applicants' employer, the private company Kaliningrad Commercial Seaport Co. Ltd. ( ЗАО «Морской торговый порт Калининград» – “the seaport company”), was established on 30 June 1998 as a result of the reorganisation of the limited company Commercial Seaport of Kaliningrad and was the legal successor to the latter. On 20 July 1998 the Administrative Authority of the Baltiyskiy District of Kaliningrad officially registered the new legal entity. On 25 April 2002 the private company was converted into a public company under the same name ( ОАО «МПТК» ). 10.     The applicants indicated that on 4 March 1997 the Governor of the Kaliningrad Region had issued Resolution no. 183 establishing the Kaliningrad Regional Development Fund (“the Fund”) and appointing five officials of the Kaliningrad Regional Administrative Authority to its board of management. The Governor himself became the chairman of the board and Mr Karetniy, the first deputy Governor, was appointed Fund manager. 11.     According to the applicants, between 1998 and 2000 Mr Karetniy was a member of the board of directors of the seaport company. During that time Mr   Karetniy also managed, through a company called Regionk which was controlled by him, a further 35% of the seaport company shares. Thus, the applicants inferred that their employer had at the material time been under the effective control of the State: both directly (20% of shares owned by the Fund) and indirectly (35% of the shares managed by an official of the regional administrative authority). 12.       According to the documents submitted by the Government, Kaliningrad seaport had been in private ownership and the Fund had acquired only 19.93% of its shares (0.09% in May 1997 and 19.84% in May 1998); therefore it could not be said that the State had effective control over its activity. Moreover, the seaport company's shares held by the Fund had been transferred on 28 November 2000 to the joint-stock company Zemland Eskima ( ЗАО «Земланд Эскима» ).     With regard to Mr Karetniy, the Government submitted that he had been a member of the board of directors of the seaport company; however at that time he had not been a civil servant. The applicants' allegation that he controlled Regionk was not supported by any evidence. They further alleged that the extent of effective State control had been limited to monitoring the company's compliance with the applicable laws. B.     Alleged discrimination by the seaport management 13.     In May 1996 the DUR took part in collective bargaining. A new collective labour agreement was signed, which provided for longer annual leave and better pay conditions. As a result, over a period of two years DUR membership grew from eleven to 275 (on 14 October 1997). The applicants stated that Kaliningrad seaport employed over 500 dockers at the material time. 14.     On 14 October 1997 the DUR began a two-week strike over pay, better working conditions and health and life insurance. The strike failed to achieve its goals and was discontinued on 28 October 1997. 15.     The applicants submitted that since 28 October 1997 the management of Kaliningrad seaport had been harassing DUR members to penalise them for the strike and incite them to relinquish their union membership. 1.     Reassignment of DUR members to special work teams 16.     On 28 October 1997 the managing director of Kaliningrad seaport issued an order whereby two special work teams (nos. 109 and 110), referred to as “dockers' reserve teams”, with a staff capacity of up to forty workers each, were formed. These teams had originally been created for older or health-impaired dockers who could not perform at full capacity. They had had insufficient numbers of workers (six persons compared with fourteen to sixteen persons in other work teams) to handle cargo and, after their merger into one team (no. 109), they had been assigned to work in day shifts lasting eight hours, while other teams worked alternating day and night shifts of eleven hours. Under the terms of the order of 28   October 1997, older and health-impaired dockers were transferred to a newly formed team, no. 117, and the majority of dockers who had taken part in the strike were assigned to the re-formed “reserve teams”, nos. 109 and 110. 17.     According to the applicants, their earning time was substantially reduced as a result of their transfer to “reserve teams” assigned to work day shifts only. In late November 1997 the managing director attempted to encourage their co-workers to relinquish their DUR membership by immediately transferring those who left the union into non ‑ DUR teams which had access to actual cargo-handling work. 18.     On 1 December 1997 the new composition of the teams was made official and the managing director ordered the teams to be re-numbered. The applicants were transferred to four teams which comprised only DUR members who had taken part in the strike (teams nos. 9, 10, 12 and 13). Teams nos. 12 and 13 had a work schedule similar to other teams, while teams nos. 9 and 10 (formerly nos. 109 and 110) were assigned to work eleven ‑ hour day shifts on two consecutive days followed by two days off. 2.     Decrease in the earning potential of DUR-member teams 19.     According to the applicants, until December 1997 it had been established practice for the leaders of the teams on duty to take turns to choose the work for their team. After 1   December   1997 the managing director unofficially excluded the leaders of the DUR teams from the traditional arrangement, effectively confining their options to the least lucrative work. The applicants' income fell by half to three quarters because they did not receive any cargo-handling work paid at piece rates, but performed only auxiliary work paid by the hour at half the normal rate. 20.     On 21 January 1998 the State Labour Inspector ordered the human resources director of the applicants' employer to compensate dockers in the reorganised teams for lost earnings. On 2 February 1998 the human resources director replied that the reorganisation of teams was an internal matter for the seaport and that, given that all dockers received equal pay for equal work, there was no legal basis for granting compensation. 21.     The applicants further alleged that their employer had deliberately kept the DUR teams understaffed (in August 1998 there had been three persons in teams nos. 9 and 10 and six persons in teams nos. 12 and 13) so as to have an excuse not to give them access to cargo-handling work. 22.     The first and second applicants complained to the State Labour Inspectorate about the reassignment of DUR members to the special teams. On 25   August 1998 the head of the State Labour Inspectorate for the Kaliningrad Region issued an instruction ( предписание ) to the acting managing director of the seaport company. The Inspectorate found, in particular, that dockers were being assigned to teams on the basis of their trade union membership. Such an arrangement was in breach of section 9(1) of the Trade Union Act and prevented several teams from performing at full capacity as they were understaffed. The Inspectorate ordered that all the changes to the composition of work teams be reversed, in order to restore their staff numbers to normal levels. 23.     On 4 November 1998 the managing director ordered the reassignment of dockers from the four DUR teams, each of which had fewer than five workers at the time, to other teams. On 1 December 1998 the remaining workers in the four DUR teams were brought together to form a new team (no. 14) and the first applicant was appointed as team leader. 3.     Holding of the safety regulations test 24.     Between 15 April and 14 May 1998 the annual test of dockers' knowledge of the work safety regulations was held. The DUR representative was not allowed to be a member of the test committee or even to be present during the test. 25.     The applicants submitted that the test conditions had not been fair and had been prejudicial to DUR members: 79 out of the 89 dockers who failed the test had been DUR members, whereas on 1 June 1998 the seaport had employed 438 dockers, of whom only 212 were DUR members. According to the Government, only 44 dockers who failed the test had had DUR membership. Dockers who failed the test were suspended from cargo ‑ handling work for one week. 26.     At the second attempt on 3-5 June, twenty workers again failed the test, seventeen of them DUR members. The applicants submitted that a week after the test two non-DUR members had been permitted to work, while the DUR members had been laid off and not given an opportunity to retake the test. The applicants submitted that the seaport management had rewarded those who agreed to relinquish their union membership with a pass mark in the test and permission to return to work. One applicant had had to hand in his dismissal and find employment outside the seaport. 27.     On 25 August 1998 the State Work Safety Inspector ordered the annulment of the results of the safety regulations test on the ground that the composition of the test committee had not been agreed with the DUR. The Inspector ordered that the test be organised again within one month with the participation of the DUR and that the dockers be provided with reference materials on the safety regulations. 28.     On 29   October   1998 the test was held for the third time in the presence of a DUR representative and an official of the State Work Safety Inspectorate. Out of five DUR members who sat the test, four received the highest mark and the fifth person received the second-highest mark. 4.     Dockers' redundancies in 1998-99 29.     On 26 March 1998 the seaport management issued a notice to the effect that 112 dockers would be made redundant. 30.     On 10 August 1998 thirty-three   dockers, formerly staff members, were transferred to “as-needed” contracts. The applicants pointed out that twenty-seven of the transferred dockers (81.8%) had been DUR members, while at the material time the average rate of DUR membership in the seaport was 33%. The applicants alleged that the transferred dockers were on average better qualified than their co-workers who had been retained. 31.     On 11   November   1998 the managing director ordered that forty ‑ seven dockers be made redundant. On 20 November 1998 the human resources director served notice on thirty-five dockers, of whom twenty ‑ eight were DUR members (according to the applicants). The applicants submitted that the actual dismissal did not take place because it required the consent of their trade union, which would never have been granted and had not been sought. Instead, on 18   December 1998, fifteen dockers from the DUR team were informed that as of 18   February 1999 their working time would be reduced from 132 hours to 44 hours a month. Having examined a complaint lodged by the applicants, the Baltiyskiy transport prosecutor found that the arbitrary establishment of a part-time schedule for an extremely small number of workers (15 out of 116 dockers with the same qualifications and 365 port dockers in total) without their consent was in breach of the constitutional principle of equality and contrary to Article 25 of the Labour Code. On 10   February 1999 the prosecutor ordered that the seaport company's managing director remedy the violations. 32.     The first to sixth, ninth, tenth, eleventh and eighteenth applicants also brought court proceedings. They requested that the court declare their transfer unlawful, find that they had been discriminated against on the ground of their trade union membership and award them compensation for lost earnings and non-pecuniary damage. 33.     On 25 January 2000 the Baltiyskiy District Court of Kaliningrad allowed the applicants' claims in part. The court found that the transfer of a small number of dockers to a part-time schedule had had no valid reason and was therefore unlawful. The court ordered the seaport company to compensate the claimants for lost earnings and non-pecuniary damage. However, the court declined to find that the claimants had been discriminated against on the ground of their DUR membership, as they had not proved discriminatory intent on the part of the seaport company management. 5.     Complaint to the ITF and new collective agreement 34.     On 26 January 1999 the DUR complained to the International Transport Workers' Federation, the ITF. The ITF called on the seaport company management to stop discriminating against the DUR and threatened an international boycott of cargo originating in Kaliningrad seaport. 35.     Following international trade union pressure orchestrated by the ITF, the seaport company management and the DUR signed an agreement on 22   March 1999. The DUR-only teams were disbanded, DUR members were transferred to other teams with full access to cargo-handling work, and a uniform system of bonuses was put in place. 36.     The applicants submitted that the conditions of the agreement had been complied with until 19 August 1999, when the most active members of the DUR were transferred again to a DUR-only team. C.     Proceedings before the domestic authorities 1.     Attempted criminal proceedings against the seaport company's managing director 37.     In 1998 the DUR requested the Baltiyskiy transport prosecutor's office to open a criminal investigation into the activities of Mr   Kalinichenko, the managing director of the seaport company, and to charge him under Article 136 of the Criminal Code with infringement of equality of rights in respect of the applicants. 38.     On 24 September 1998 the Baltiyskiy transport prosecutor's office declined to open a criminal investigation concerning Mr   Kalinichenko, as a preliminary inquiry had failed to establish direct intent on his part to discriminate against the applicants. 39.     A further request by the applicants to have criminal proceedings instituted against the seaport company management for alleged discrimination, lodged on 29 November 2004, was rejected on 9 December 2004 for lack of corpus delicti , as the Baltiyskiy transport prosecutor's office had not established direct intent to discriminate against the applicants. According to the Government, the applicants did not appeal against this decision. 2.     Proceedings seeking a finding of discrimination and compensation 40.     On 12   December   1997 the DUR filed an action on behalf of its members, including six applicants (Mr Sinyakov, Mr Kasyanov, Mr   Korchazhkin, Mr Zharkikh, Mr Kalchevskiy and Mr Dolgalev), with the Baltiyskiy District Court of Kaliningrad. The DUR requested the court to find that the seaport management's policies had been discriminatory and to order compensation for lost earnings and non ‑ pecuniary damage sustained by the claimants. 41.     On 18 August 1998 the DUR joined further claimants to the action (twelve applicants – Mr Danilenkov, Mr   Soshnikov, Mr Morozov, Mr   Troynikov, Mr Kiselev, Mr Bychkov, Mr Pushkarev, Mr Silvanovich, Mr Oksenchuk, Mr   Grabchuk, Mr Tsarev and Mr Milinets) and also submitted new facts corroborating their discrimination complaint. 42.     On 21 April 1999 the DUR lodged the action on behalf of its members in its final form. 43.     On 28 May 1999 the Baltiyskiy District Court of Kaliningrad dismissed the DUR's action. The court found the complaints unsubstantiated and held that the seaport management could not be held responsible for the uneven distribution of well-paid cargo-handling work. The claimants appealed against the judgment. 44.     On 6 October 1999 the Kaliningrad Regional Court quashed the judgment of 28 May 1999 on appeal and remitted the case for fresh examination. The court pointed out that the first-instance court had failed to assess whether the transfer of dockers between teams could have been motivated by retaliation against the claimants for their participation in the strike and membership of the DUR. The court also found that the first ‑ instance court had ignored the claimants' complaint about a decrease in their wages after the transfer compared with their co-workers' earnings. The court reprimanded the first-instance court for the failure to obtain documents on dockers' wages from the defendant and for refusing the claimants' request to this effect. The court concluded that the first-instance court's finding as to the absence of discrimination had not been lawful or justified because the above-mentioned shortcomings had prevented it from assessing the claimants' arguments in the light of all the relevant information. 45.     On 22 March 2000 the Baltiyskiy District Court of Kaliningrad delivered a new judgment. The court held that the discrimination complaint was unsubstantiated because the applicants had failed to prove the management's intent to discriminate against them. The court based its conclusion on statements from port managers and stevedores. The managers explained that DUR-only teams had been formed to mitigate tension in the workforce created by the animosity of strikers towards their co-workers who had not taken part in the strike. The stevedores denied that they had received any instructions from the management concerning the distribution of cargo ‑ handling work. The court also referred to the decision of the prosecutor's office of 24   September 1998 and ruled that the seaport company could not be held liable for the alleged acts of discrimination, since no intent to discriminate had been established on the part of its management. The court pointed to the insignificant number of claimants (29) compared with the total number of strikers (213), and held as follows: “...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 claimants is the result of their individual actions and characteristics and of objective factors.” 46.     The court attributed the decrease in the claimants' wages to their individual omissions (such as the failure to pass the work safety test) and the overall reduction in cargo-handling work in the seaport. However, on a proposal from the defendant the court awarded the claimants nominal compensation in the form of the difference in wages for two months following their transfer to new teams. The applicants appealed against the judgment. 47.     On 14 August 2000 the Kaliningrad Regional Court ordered the discontinuance of the civil proceedings in the part concerning the discrimination complaint. The court decided that the existence of discrimination could only be established in the framework of criminal proceedings concerning a specific official or another person. Legal entities such as the seaport company could not be held criminally liable. Therefore, the court concluded that it lacked jurisdiction to examine the discrimination complaint against the seaport company. In the remainder, the court upheld the judgment of 22 March 2000. 48.     On 9 July 2001 all the applicants brought a fresh action against the seaport company. They sought a declaration that they had been discriminated against on the ground of their DUR membership and that their rights to equal pay for equal work and access to work had been violated; they also requested that the violations be made good by the seaport company and that they be awarded compensation for non-pecuniary damage. 49.     On 18 October 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad, in an interim decision ( определение ), dismissed the application for a declaration. The court followed the reasoning of the judgment of 14 August 2000. It held that it lacked jurisdiction to establish whether there had been discrimination because such a fact could only be established in criminal proceedings; however, a legal entity could not be held criminally liable. 50.     The applicants appealed against the decision to the Baltiyskiy District Court of Kaliningrad, which on 6 December 2001 upheld the decision of 18   October 2001. 3.     Decision of the Kaliningrad Regional Duma 51.     The DUR complained to the Kaliningrad Regional Duma, alleging a violation by the employer of the rights of its members. On 15 November 2001 the Duma's Standing Committee on Social Policy and Health Care issued a resolution expressing concern at the situation described by the complainants. In particular, it stated as follows: “...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-mentioned trade union. 4. The DUR reasonably raised an issue of discrimination at the Kaliningrad seaport company in connection with trade union membership...” 52.     On 29 November 2001 the Duma Committee addressed a letter to the Kaliningrad prosecutor with a request to take immediate measures to defend the rights of DUR members and to consider the possibility of instituting criminal proceedings against the management of the seaport company. 4.     Other domestic proceedings concerning various complaints (a)     Deprivation of bonuses and loss of earnings 53.     From 8 to 15 November 1998 the second, third, fourth, ninth and eighteenth applicants and four of their co-workers took part in a trade union conference in Denmark. They had applied in advance to the seaport company management for permission to attend the conference, but received no reply. By orders of 18   December 1998 and 30 March 1999 the conference participants had their annual bonuses withdrawn because they had allegedly taken absence without leave. The dockers appealed to a court. 54.     On 1 November 1999 the Baltiyskiy District Court of Kaliningrad found that the seaport company management had been required to grant the claimants leave to attend a trade union conference, as their right to such leave was unconditionally guaranteed by section 25(6) of the Trade Union Act. The court declared the orders depriving the claimants of their annual bonuses to be unlawful and ordered the seaport company to pay compensation. The judgment was not appealed against. (b)     Lifting of a disciplinary sanction against the eighteenth applicant 55.     On 10 January 1999 the eighteenth applicant was issued with a disciplinary reprimand for his failure to appear for work on 14 December 1998, which was a public holiday. The eighteenth applicant appealed against the sanction; he stated that he was an elected leader of a trade union and that therefore the trade union's consent was required in order to impose the sanction. 56.     On 11 January 2000 the Baltiyskiy District Court of Kaliningrad allowed the eighteenth applicant's complaint. The court annulled the disciplinary sanction on the ground that the seaport company management had failed to seek the trade union's consent before imposing it, as required by Article 235 of the Labour Code. (c)     Lifting of a disciplinary sanction for refusal to perform unskilled work 57.     On 15 January 1999 dockers of DUR-only team no. 14 were ordered to clear the port of snow. The dockers refused because the collective bargaining agreement provided that they could be required to perform unskilled work only if such work was auxiliary to their cargo-handling work, which was not the case. They remained on standby in the port until the end of the shift. On 21 January 1999 the seaport company management ordered that the day in question be counted as absence without leave, imposed a disciplinary reprimand and withheld their January bonus. 58.     The DUR lodged a court action on behalf of the second to sixth applicants and the ninth applicant. It claimed that the disciplinary sanction should be lifted and the wages and bonuses withheld should be paid. 59.     On 10 October 2000 the Baltiyskiy District Court of Kaliningrad found in favour of the claimants. The court found that the unjustified redeployment of qualified dockers to unskilled work violated their labour rights and that they could not be penalised for an unauthorised absence as they had stood by waiting for cargo-handling work within the port confines. In addition, the court pointed out that the claimants were elected leaders of a trade union and that the union's consent was required in order to impose a sanction; no such consent had been obtained. The seaport company was ordered to lift the sanction and to pay the claimants compensation for lost earnings and bonuses, as well as to bear the court fees. (d)     Unlawful dismissal of the sixteenth applicant 60.     On 14 May 1999 the sixteenth applicant was dismissed on the ground that he had allegedly appeared for work in an inebriated state. The sixteenth applicant appealed to a court against the decision to dismiss him. 61.     On 25 August 1999 the Kaliningrad Regional Court, ruling at final instance, upheld the applicant's complaint and ordered the seaport company to reinstate him and pay compensation for lost earnings. The court found, in particular, that there was no evidence showing that the sixteenth applicant had been drunk. (e)     Unlawful disciplinary sanction 62.     By an order of 10 December 1999 the nineteenth, twentieth, twenty ‑ sixth and thirty-second applicants were severely reprimanded in the course of disciplinary proceedings against them for allegedly leaving their workplace early without authorisation. The DUR, acting on behalf of the applicants concerned, appealed against the disciplinary sanction to a court. 63.     On 29 November 2001 the Baltiyskiy District Court of Kaliningrad allowed the DUR's action. The court found it established that the defendant (the seaport company) had failed to prove unauthorised absence. The court quashed the contested order and awarded the applicants concerned compensation for non-pecuniary damage. (f)     Unlawful finding of responsibility for accident 64.     On 20 June 2000 the eighteenth applicant was injured in the workplace. A special commission found that he had been responsible for the accident himself as he had allegedly failed to observe the safety regulations. A DUR representative (the twenty-fourth applicant) disagreed with the commission's conclusion. Nevertheless, the eighteenth applicant was reprimanded in disciplinary proceedings and he and his team leader (the third applicant) lost their June bonus. On behalf of the eighteenth and third applicants, the DUR appealed against these decisions to a court. 65.     On 13 April 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad found that the conclusions of the special commission were not sustainable in the light of the testimony given by eyewitnesses. The court quashed the disciplinary sanction imposed on the eighteenth applicant and ordered the seaport company to pay the June bonus to him and to his team leader. (g)     Unlawful demotion of the third applicant 66.     By an order of 19 July 2000 the third applicant was demoted from the position of team leader to that of a simple docker, on the ground that he had allegedly failed in his leadership duties. The DUR challenged the order, lodging a court action on behalf of the third applicant. 67.     On 7 May 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad allowed the action in part. The court found that the demotion had not been agreed to by the DUR, of which the third applicant was an elected leader. The court quashed the demotion order and ordered the seaport company to pay compensation for lost earnings and non ‑ pecuniary damage, and the court fees. (h)     Restriction of access for trade union leaders to the port 68.     On 15 May 2001 the seaport company's human resources director ordered that DUR representatives be admitted to the port only in order to visit DUR members at their workplaces and during their working hours. Under the order, the second applicant was not allowed into the port. 69.     On 20 June 2001 the Baltiyskiy transport prosecutor found that the order violated the guarantees of free access for trade union leaders to the workplaces of union members, contained in Article 231 of the Labour Code and section 11(5) of the Trade Union Act, and ordered the managing director of the seaport company to remedy the violation. 70.     On 16 July 2001 the seaport company's managing director issued a new order, no. 252, regulating access for DUR leaders to the port. It provided, inter alia , that access was only possible between 8 a.m. and 8   p.m. on the basis of “one-off” permits obtained in advance and specifying the itinerary and purpose of the visit. 71.     On 26 November 2001 the Baltiyskiy transport prosecutor requested the seaport company's managing director to annul order no. 252 on the ground that it was unlawful. The request was refused by the seaport company management. 72.     On 23 January 2002 the Baltiyskiy transport prosecutor lodged a civil action on behalf of the second applicant against the seaport company, requesting that order no. 252 be declared invalid. 73.     On 9 July 2002 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad allowed the action and declared that the order restricting trade union leaders' access to the port was unlawful and that, in so far as it required advance permission to be obtained, it was also in breach of Article 231 of the Labour Code. The judgment was not appealed against. D.     Transfer of non-DUR-members to a new company 1.     Establishment of a new company and transfer of personnel 74.     In August-September 1999 the seaport company management founded a subsidiary stevedoring company, TPK ( ООО «Транспортно ‑ погрузочная компания» ), which hired thirty new dockers. Between September   1999 and November   2000 TPK's dockers worked together with the seaport company dockers in mixed teams. 75.     On 27 November 2000 a new collective labour agreement was signed between the Kaliningrad seaport company management and the Maritime Transport Workers' Union. The agreement provided, inter alia , that all cargo-handling work would be assigned to TPK and that the employees of this company would receive a pay rise, complementary medical insurance and a special allowance for sport activities. 76.     In December 2000 and January 2001 the seaport company management offered most dockers lucrative transfers to TPK, but all the DUR members were allegedly excluded from the transfer. In January 2001 the remaining DUR members were put into two work teams. The seaport company's managing director announced to the applicants that all stevedoring work would be assigned to TPK, as the seaport company's licence for stevedoring expired on 1 October 2001. 77.     In April 2001 DUR members found their potential earning time cut in half after they were forbidden to work night shifts. Their income fell to around USD 55 per month, as against an average for non-DUR workers of USD 300 per month. 78.     In June 2001 DUR members' wages fell again to USD 40 per month. 79.     As a result of the conflict, DUR membership shrank from 290 (in 1999) to only twenty-four on 6 December 2001. 80.     In February 2002 the remaining DUR members (twenty-two dockers) were made redundant and dismissed. The second applicant was retained: he was a deputy chairman of the DUR steering committee and the DUR's consent was required for his dismissal. The applicants submitted that he had been kept in his position for the sake of appearances only as he did not have any earning opportunities. 2.     Civil action concerning the transfer of personnel 81.     On 18 March 2002 the DUR, on behalf of the first to fifth, ninth to eleventh, sixteenth and eighteenth to thirty-second applicants, brought a civil action against the seaport company and TPK, seeking reinstatement of the DUR members and compensation for lost earnings and non-pecuniary damage. It also asked the court to find a violation of the applicants' right to freedom of association and to declare that the employer's actions had discriminated against the claimants on the ground of their DUR membership. 82.     On 24 May 2002 the Baltiyskiy District Court of Kaliningrad delivered its judgment. The court found that in November 2000 the board of directors of the Kaliningrad seaport company had decided to reassign the cargo-handling work to TPK. Between 30 November 2000 and April 2001, 249 dockers had been transferred to TPK and in December 2000 the cargo ‑ handling terminals and equipment had been either sold or leased to the new company. The court inferred from this that the employer's real intention had been to change the structural subordination of the stevedoring unit and that there had been no lawful grounds for making the unit's employees redundant. It found the applicants' dismissal to be unlawful and ordered their reinstatement with TPK and payment of lost earnings and compensation for non-pecuniary damage. 83.     The court also examined the applicants' allegations of discrimination against them. Relying on statements by several leaders of dockers' teams, it established that in November 2000 all the dockers had been invited to a meeting where their transfer to TPK had been discussed. The applicants had not been prevented from attending and they had been offered the opportunity to apply for transfer. However, they had refused to do anything without the steering committee chairman's advice. When asked by the court why they had not applied for transfer individually, the applicants stated that they had been certain they would receive a negative response from their employer. 84.     The team leaders also testified that the second applicant (the deputy chairman of the steering committee) had been present at the meeting and had argued against the transfer to TPK. The court further inspected leaflets distributed by the DUR and the twenty-fourth applicant's complaint to a prosecutor's office. It appeared from the leaflets that the DUR had consistently campaigned against the transfer to TPK and advocated staying with the seaport company, and that the complaint had exposed alleged compulsion to apply for a transfer to TPK. The court found that the evidence gathered contradicted the applicants' allegations that the DUR had not been informed of the transfer or had been excluded from it. It dismissed as unsubstantiated the applicants' complaints of discrimination against them and of a violation of their right to freedom of association. 85.     Finally, the court ordered immediate enforcement of the judgment in the part concerning the applicants' reinstatement. 86.     On 7 August 2002 the Kaliningrad Regional Court upheld the judgment of 24 May 2002 on an appeal by the seaport company. 3.     Enforcement of the judgment of 24 May 2002 87.     On 27 May 2002 the managing director of the seaport company annulled the orders for the applicants' dismissal of 20 February 2002 and reinstated them. However, they were not transferred to TPK. 88.     On 24 June 2002 the TPK limited company was reorganised to form the public company Maritime Commercial Port ( ОАО «Морской торговый порт» – “MTP”). On 11 September 2002 the Kaliningrad Regional Court clarified that the applicants were to be reinstated into MTP, which was the legal successor to TPK. 89.     On 7 August 2002 all the applicants were again dismissed from the seaport company for absence without valid reasons. However, they pointed out that as far back as 10 June the seaport company's managing director had confirmed to them in writing that there were no earning opportunities for them in the old company because the stevedoring licence had expired in 2001. The applicants appealed against their dismissal to a court. 90.     On 7 October 2002 the Baltiyskiy District Court of Kaliningrad granted the applicants' claim. The court found that the defendant had failed to enforce the judgment of 24 May in the part concerning the dockers' transfer to TPK and that their dismissal for unauthorised absence had therefore been unlawful. It ordered payment of lost earnings and compensation for non-pecuniary damage. On 22