CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 décembre 2021

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They were represented before the Court by Mr M. Özveri, a lawyer practising in Kocaeli. 2.     The Turkish Government (“the Government”) were represented by Mr   Hacı Ali Açıkgül, Director of the Human Rights Department of the Turkish Ministry of Justice and Turkey’s co-Agent at the European Court of Human Rights. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicants, who are listed in the Appendix, are Turkish nationals residing in Kocaeli. At the material time, they were working at the Gölcük and Yeniköy factories operated by Ford Otomotiv Sanayi A.Ş. (Ford Otomotiv) in Kocaeli. 5.     On 15   December 2014, having been recognised by the Ministry of Labour and Security as eligible to represent workers at the factories belonging to Ford Otomotiv under the “majority of company employees” requirement, Türk Metal Sendikası (the Turkish trade union for the metal-working industries – hereinafter “Türk Metal Sen” or “the Türk Metal   union”) entered into a collective agreement with Türkiye Metal Sanayicileri Sendikası (the Turkish employers’ association for the metal-working industries – hereinafter “MESS”) on behalf of a majority of employees of the above-mentioned company, for a period of three years from 1   September   2014 to 31   August   2017. The agreement concerned the workers’ wages and their rates of increase. 6.     According to the information provided by the Government in their observations, in 2015 Türk Metal Sen had also been recognised as eligible to represent workers in collective bargaining with another employer, Bosch Fren Sistemleri A.Ş. (hereinafter “Bosch Fren”), operating in the same sector as the applicants’ employer. When Türk Metal Sen had finally succeeded in entering into a collective agreement with MESS on behalf of the employees of Bosch Fren, the agreement had resulted in a more substantial wage increase than the one obtained under the collective agreement signed with Ford Otomotiv. According to the Government, this discrepancy could be explained by the fact that the Bosch Fren employees had been underpaid for years in comparison with other employees working in the same sector. 7.     From 21 May to 3 June 2015, 3,000 to 4,000 Ford Otomotiv employees, including the applicants, held a demonstration on vacant land 500 metres from their workplace to protest against the terms of the collective agreement signed in the autumn of 2014 between the Türk Metal union, of which they were members, and MESS, their employer’s union, for the period from September 2014 to August 2017. They began by holding a press conference in Sabri Yalım Park in İzmit and declared that they would not resume work until their demands had been met. They also protested against the term for which the collective agreement had been entered into – three years, as opposed to two in the case of the previous agreement – and maintained that the Türk Metal union, to which almost all the employees purportedly belonged, was acting in concert with the employer to defend the latter’s interests rather than their own. The demonstrators mounted their protest in parallel with the strike action taking place in Bursa in the same business sector. 8.     During their action, the employees in question did not block production and did not harass employees who had decided to continue working. Some 550 of these employees, including the applicants, stopped working throughout the entire duration of the action. The rest of the employees, that is to say some   3,000 to 4,000 people, stopped working sporadically. Some 4,000 employees left the Türk Metal union, of which 1,000 to 1,500 joined the Birleşik Metal İş trade union. 9.     From the first day of the work stoppage, Ford Otomotiv sent warnings to the mobile phones of those taking part in the strike directing them to resume work on penalty of dismissal. Thus, on 2l May 2015, the employer sent text messages to the mobile phones of the employees concerned, asking them to resume work at the Gölcük factory by 4 p.m., following which certain workers left for the factory while others remained absent; similarly, on 22   May 2005, text messages were sent to the mobile phones of the employees concerned summoning them to work as of 8 a.m. at the Yeniköy factory, but only some of the employees complied. Subsequently, on 25 May 2015, the Managing Director of the factories, H.Y., urged the employees to come to work, but they did not obey and did not resume work. In addition, the applicants were sent a letter dated 27 May 2015 requesting that they report to the human resources department to justify their absence within two days following notification of that letter. Lastly, on 30 May 2015, 550 workers who had been continuously absent since the start of the protests were informed by registered post that they were summoned before the disciplinary board. 10.     Following the resumption of work, 550 employees, including the applicants, were sent before the disciplinary board. The applicants were among those who were asked to present arguments in their defence. Ford Otomotiv ultimately decided to dismiss 50 employees, including the applicants, on the grounds that they had been absent from work without leave or excuse from 25 May to 2 June 2015. 11.     On 24 June 2015 the dismissed employees lodged complaints with the Kocaeli employment tribunals (hereinafter “the employment tribunals”) on grounds of wrongful dismissal, requesting reinstatement. 12.     In judgments delivered on 21 December 2015 and 26 January 2016, Employment Tribunals nos.   5 and   6 found in favour of the dismissed employees. Referring to international freedom of association standards (International Labour Organization (ILO) conventions, European Social Charter, European Convention on Human Rights), decisions delivered by international organisations, in particular those of this Court, and judgments delivered by the Turkish Constitutional Court, they found that the employees in question had been dismissed on the basis of their trade-union activities. They explained that Ford Otomotiv incited employees to join the Türk Metal union upon recruitment and that pressure was exerted on those who did not agree; that the strike action had been launched in response to the provisions of the new collective agreement, which were unfavourable to the employees; that it had been a general, industry-wide strike; that 3,000 to 4,000   Ford Otomotiv employees had taken part; that 550   of the company’s employees had stopped working for the entire duration of the strike; that, after the strike had been launched, 4,000 people had left the Türk Metal union; that 1,000 to 1,500 of them had subsequently joined the Birleşik Metal İş union; and that the strike action had been conducted peacefully on land located 500 metres from the workplace, without disrupting production or disturbing those who wished to work. Based on the testimony of a Ford Otomotiv manager, the employment tribunals further noted that, of the 550 employees summoned before the disciplinary board, only 50 had been dismissed in order to restore discipline, that this had not been the case for the other employees summoned since the employer wished to restore peace in the workplace, and that, of the 50 employees dismissed, 47 had joined the Birleşik Metal İş union. 13.     The employment tribunals concluded that the action could be seen as the peaceful exercise of a right in a democracy and that contract termination was unjustified, the employer being in breach of its duty to ensure equal treatment of employees. They added that the real reason for the dismissals lay in the decision taken by the employees in question to join another trade union; that the employer had effectively sought to compel those employees who had chosen to join the Birleşik Metal İş union to return to the Türk Metal union; that the strike had in fact been mounted to protest against the absence of a genuine right for employees to organise and join the union of their choice and against employer pressure in this respect; and that, consequently, the employees had been dismissed on the basis of their trade-union activities. The employment tribunals ordered the employer to reinstate the individuals who had been dismissed and to pay each of them special compensation of one year’s wages for wrongful dismissal on the basis of trade-union activity, irrespective of their effective reinstatement. They further ordered the employer, should the individuals dismissed request reinstatement within the period provided for that purpose, to pay each of them compensation corresponding at most to four months’ wages and other benefits and allowances for the period during which they had been unemployed. 14.     On an appeal from the employer, the Ninth Division of the Court of Cassation put an end to the proceedings in judgments delivered on 11 and 17   March 2016 and 17   September 2016, quashing the judgments of the employment tribunals. It found that most of the employees who had testified had indicated that their strike action had not been directed against the employer but rather against the trade union that had entered into the collective agreement and that those who had declared that their action had been conducted to protest against their working conditions had not specified which conditions were meant. It added that the strike at issue had not been a lawful strike stemming from a conflict arising in the course of negotiating a collective labour agreement within the meaning of section   58 of Law no.   6356; that the employees’ exercise of their freedom to organise peacefully in defence of their rights, as provided for by international conventions, should not aim to harm the employer specifically, and should be proportionate; and that, in this case, in view of the length of the strike, its timing, and the number of participants, the strike action had been far from proportionate. The Court of Cassation therefore concluded that the dismissals were well-founded. 15.     Regarding the employer’s decision to dismiss 50 of the 550 employees who had stopped working throughout the entire duration of the strike, the Court of Cassation found that Ford Otomotiv had failed to substantiate the arguments put forward in support of this difference in treatment and that the latter had thus been in violation of section 5 of Law no.   4857 of 22   May 2003 on labour, which required that the employer treat its employees equally. It took the view that the employer’s argument to the effect that such discriminatory treatment had stemmed from the need to avoid disrupting production in the various units could not justify the dismissals. That being said, the Court of Cassation concluded that, although the employer had failed to fulfil its obligation to treat employees equally, the dismissals had nonetheless been well-founded since the employees had stopped working unlawfully. 16.     The parts of the judgments of the Court of Cassation relevant to the present case read as follows: “It must be noted that the action was conducted on vacant land owned by a third party and located approximately 500 metres from the workplace to protest against the signing of the latest collective agreement for three years and that agreement’s failure to meet the [employees’] demands. At the time of the action, there had been no authorisation process and the collective agreement had been signed approximately ... months earlier. Nor was it argued that the workers’ freedom to choose a trade union had been breached during the authorisation process prior to the employer’s signing of the collective agreement. ... By making the necessary announcements, the respondent employer attempted to make the workers taking part in the collective action return to work. Over time, the number of workers involved in the action diminished and the action came to an end without any need for intervention. Nevertheless, the action lasted 13 days, and production was considerably impaired by the workers’ absenteeism, including that of [the claimant]. ... In their defence against the employer, a substantial number of workers further represented that the action had not been directed against the employer and that they had participated in that action as a response [to the trade union’s signing of the collective agreement]. Some of the workers stated that they had exercised their right to collective action on account of poor working conditions, without however specifying the poor conditions in question. ... In the present case, it is clear that this was not an instance of a workplace exercise of the right to strike occasioned by the signing of the collective agreement. In addition, even though, under ILO Conventions nos.   87 and 98, the European Social Charter and Articles   51, 54 and 90 of the Constitution, workers have the right to conduct democratic, peaceful collective actions in defence of certain rights pursuant to the law in matters of individual or collective labour, the action must not comprise an intent to harm the employer specifically and must be proportionate. ... Consequently, the collective action supported by the claimant by means of a work stoppage cannot be said to comply with the relevant laws, whether domestic law or the international law by which we are bound, and the existence of the employer’s right to terminate the employment contract must be accepted. ... Moreover, as a result of the collective action, which involved 3,000 to 4,000   workers, the respondent employer identified 550 workers who supported the action from start to finish, sent them before the disciplinary board and indicated that the employment contracts of some 50 workers, including that of the claimant, were terminated. Since the employment contracts of certain workers who took part in the action and supported it from start to finish were not terminated, the termination of the claimant’s employment contract constitutes a breach of the employer’s equal treatment obligation under section 5 of Law no.   4857. The respondent employer was unable to justify discriminating between the claimant and those workers in the same situation whose employment contracts were not terminated. In his/her statement, the witness for the respondent represented that, in order to justify the dismissal of some 50 out of 550 workers, the disciplinary board had distributed these dismissals equally to avoid any production stoppages within the various units. This reasoning cannot be used to justify discriminating against workers. Dismissal cannot be justified by the fact that, within the framework of its work organisation, the employer selected workers from different units for dismissal so as not to impair production. However, since the fact that the employer acted in a manner contrary to its equal treatment obligation did not negate the valid grounds [for the measure in question], it must be admitted that the employer’s termination of the employment contract was based on a valid ground, given that the employee stopped working to take part in the collective action in an unlawful manner.” 17.     On dates not specified in the file, the applicants lodged individual applications with the Constitutional Court, in which they complained that their right to a fair hearing, their right to work, their right to freedom of assembly, their right to strike, their right to equal treatment and their right to freedom of expression had been infringed, relying on the corresponding constitutional provisions . 18.     Following the lodging of those applications, the Second and Third Panels of the First Section of the Constitutional Court, sitting as a two-member formation, ruled on them in judgments delivered on 27   July and 27   September 2016. In these judgments, the Constitutional Court declared the complaints in connection with the right to a fair hearing and the right to strike, as well as those relating to discrimination, inadmissible as manifestly ill-founded, and declared the complaint regarding the right to work incompatible ratione materiae with the provisions of the Constitution . 19.     Concerning the complaint relating to the fairness of the proceedings, the Constitutional Court pointed out first that, under Article 148 § 4 of the Constitution, the issues to be considered in appellate review could not be re-examined when it heard individual applications. It specified that in principle neither evidence relating to the facts and events previously submitted in the courts, nor the admissibility of such evidence, nor the interpretation and application of the legal rules, nor the fairness of the conclusions reached by the previous courts could be reviewed in the context of such applications unless the courts’ findings and conclusions contained obvious errors of assessment and, being manifestly arbitrary, might have infringed the rights and freedoms relied upon in the individual application. It found that, in this case, the judgments delivered by the lower courts and the Court of Cassation did not contain obvious errors and were not arbitrary. 20.     Concerning the right to strike, the Constitutional Court referred to the provisions of domestic law laying down the conditions for lawful strikes, its own case-law and that of this Court ( National Union of Belgian Police v. Belgium , no.   4464/70, 27   October 1975, Series A no.   19, and Demir and Baykara v. Turkey [GC], no.   34503/97, ECHR 2008), and held that, in accordance with Article   54 of the Constitution, it was only possible to strike in cases where a disagreement had arisen during the collective bargaining process, and that the corresponding right could only be exercised in the framework laid down by law, that the disputed strike had not been called by the relevant trade union in defence of the employees’ interests, that certain employees had left that union to join another union during the action and that, consequently, the action in question could not be regarded as trade-union activity. It pointed out that the right to strike was part of the right to organise, but as the action in the present case had not been conducted in the framework of trade-union activities, it could not be considered that the termination of the applicants’ employment contracts had breached their right to strike. 21 .   The Constitutional Court’s decision read as follows: “B. Whether the right to strike was breached 8. Under Article   54 of the Constitution, ‘[w]orkers have the right to strike if a disagreement arises during the collective bargaining process.’ The words ‘[t]he procedures and conditions governing the exercise of this right and ... the exceptions thereto shall be regulated by statute’ indicate that a strike will only be possible in cases where a dispute arises in the course of negotiating a collective labour agreement and that this right can only be exercised within the framework laid down by law (AYM, E.2013/1, K.2014/161, § 165) [Constitutional Court, no.   E.2013/1, K.2014/161, § 165, judgment of 22 October 2014]. 9. For a strike to be constituted, the workers must collectively leave their posts by ceasing to work. It is important to establish whether the fact of collectively leaving work has significantly disrupted work or production at the workplace and therefore peace at work. In this sense, a single worker’s cessation of work cannot be regarded as a strike, for a strike is a collective action. However, it is not enough for workers to leave their posts collectively. In leaving work collectively their aim must further be to halt work in that workplace or to impede it considerably, depending on the nature of the work. Lastly, for there to be a strike, the workers must agree among themselves or follow an organisation’s decision to stop working collectively in pursuit of the same end (AYM, E.2013/1, K.2014/161, 22/10/2014, § 169) [Constitutional Court, no.   E.2013/1, K.2014/161, § 169, judgment of 22 October 2014]. 10. It should be noted that the European Court of Human Rights (ECtHR) and the supervisory bodies of the International Labour Organization (ILO) take the view that the right to strike forms an integral part of the right to organise guaranteed by ILO Convention no.   87 on Freedom of Association and Protection of the Right to Organise (for the aspects of international law taken into account by the ECtHR in addition to the European Convention on Human Rights (ECHR), see Demir and Baykara v. Turkey [GC], no.   34503/97, ECHR 2008). 11. In its judgment of 27 October 1975 in the case of the National Union of Belgian Police v. Belgium , the ECtHR pointed out that paragraph 1 of Article 11 of the ECHR allowed members of a trade union to be heard in order to protect their interests, adding, however, that the State had the discretionary power to determine the means used towards this end, that the words ‘for the protection of his interests’ in Article 11 of the ECHR were important, and that the ECHR secured the freedom to defend the occupational interests of trade union members by the union’s collective action [ [1] ] . [12]. In the present case, the union of which the applicants are also members entered into a collective agreement with the employer for the period from September 2014 to August 2017. Along with other colleagues, the applicants took part in an action conducted on a third party’s vacant land 500 metres from their place of work. They maintained that the collective agreement in question had created an unfavourable situation for the workers. Some 550 of the roughly 3,000 to 4,000 individuals who participated in the action along with the applicants stopped working entirely. The others participated from time to time and worked the rest of the time. The action in question had not been organised by the union of which the applicants were members or for the sake of protecting the interests of union members. In fact, during the protest, a group of protesters left [that] union and joined another trade union. Consequently, the action cannot be characterised as trade-union activity. Given that the right to strike forms part of the right to organise and that the action in the present case was not conducted in the framework of trade-union activities, it cannot be said that the termination of the applicants’ employment contracts breached their right to strike. [13]. For the reasons set forth above, this part of the application must also be declared inadmissible as manifestly ill-founded.” B.     Relevant domestic law 22.     With regard to collective bargaining rights, the right to strike and lockout, the relevant provisions of the Constitution of 1982, as amended by Law no.   5982 of 7 May 2010, read as follows: Article 53 “Workers and employers have the right to enter into collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work. Collective agreements shall be entered into in accordance with the statutory procedure. The parties may apply to the Arbitration Board if a disagreement arises during the collective bargaining process. The decisions of the Arbitration Board shall be final and have the force of a collective agreement. The scope of and exceptions to the right of collective bargaining, the persons covered thereby, and the form, procedure and entry into force of collective agreements and any extension of the provisions thereof, as well as the organisation and operating procedures and principles of the Arbitration Board and other matters shall be laid down in law. ” Article 54 “Workers shall have the right to strike if a disagreement arises during the collective bargaining process. The procedures and conditions governing the exercise of this right and the employer’s use of lockout, their scope and the exceptions thereto shall be regulated by law. The right to strike and lockout shall not be exercised in a manner contrary to the principle of good faith, to the detriment of society, or in a manner damaging to national wealth. The circumstances and workplaces in which strikes and lockouts may be prohibited or postponed shall be regulated by law. In cases where a strike or a lockout is prohibited or postponed, the dispute shall be settled by the High Arbitration Board at the end of the postponement period. The parties may apply to the High Arbitration Board by mutual agreement at any stage of the dispute. The decisions of the High Arbitration Board shall be final and have the force of a collective labour agreement. The organisation and functions of the High Arbitration Board shall be regulated by law. Those who refuse to go on strike shall in no way be barred from working at their workplace by strikers. ” 23.     The relevant parts of Article 148 of the Constitution, as amended by Law no.   5982, read as follows : “1.     The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, presidential decrees and the Rules of Procedure of the Grand National Assembly of Turkey, and decide on individual applications. Constitutional amendments shall be examined and verified only with regard to their form. ... 3.     Anyone who considers that a public authority has violated one of his or her fundamental rights and freedoms as protected by the Constitution and secured under the European Convention on Human Rights Turkey may apply to the Constitutional Court. Such an application may only be made after all ordinary legal remedies have been exhausted. ... 4.     The Constitutional Court shall not re-examine matters to be considered in appellate review when hearing individual applications. ...” 24.     The relevant parts of section   17 of Law no.   6356 of 18 October 2012 on trade unions and collective agreements read as follows: “Anyone is free to join a union. No one shall be forced to join a union or to withdraw therefrom. No worker or employer shall be a member of more than one trade union in the same sector of activity. ...” 25.     Pursuant to paragraph   4 of section 25 of that law, if the employer discriminates against workers on account of their membership or non-membership in a trade union, it is required to pay “union compensation” of no less than the worker’s annual wage. 26.     Section 58 of that same law provides: “(1)   A strike is any concerted work stoppage for the purpose of halting the activities of a given establishment or of paralysing such activities to a considerable extent, or any abandonment by workers of their work in accordance with a decision taken to that effect by an organisation. (2)     A strike shall be deemed lawful when it is called as a result of a dispute arising in the course of negotiating a collective labour agreement for the purpose of safeguarding or improving the working conditions or economic and social position of the workers. (3)   A strike shall be deemed unlawful when it is called without fulfilling the conditions for a lawful strike. ” 27.     The parts of section 70 of that law that are relevant to the present case provide: “(1) In the event of an unlawful strike, the employer may terminate with just cause the contract of employment of any worker who took part in the decision to call the strike, supported its implementation, took part in the strike or urged others to do so or continue to do so. ” 28.     Pursuant to section   78 of the same law, any person, including the employer or union representatives, who forces another person to remain a member of or withdraw from a union is punishable by an administrative fine of 700 Turkish liras (TRY). 29.     The relevant parts of section   5 of Law no.   4857 of 22 May 2003 on labour (“Law no.   4857”) read as follows: “No discrimination based on language, race, colour, sex, disability, political opinion, philosophical belief, religion and denomination or any other status shall be permissible in the employment relationship. ...   ” 30.     The relevant parts of section   25 § II-g of Law no.   4857 provide: “[The employer may] dismiss the employee in the event that, without the employer’s permission or a valid reason, the employee is absent from work for two consecutive days or twice in one month on the working day following a rest day or on three working days in any month.” 31.     Pursuant to Article   118 of the Turkish Criminal Code, preventing the exercise of union rights constitutes a major offence, which Article reads as follows: “Any person using force or threats to compel another person to be or not to be a union member, to take part or not to take part in union activities, to withdraw from a union or a union leadership position, shall be sentenced to between six months’ and two years’ imprisonment. Prevention of union activities through the use of force, threats or any other unlawful act is punished by a prison term of one to three years. ” C.     Relevant international law 32.     Article 5 of the European Social Charter (revised) on the right to organise, not yet ratified by Turkey, provides as follows: Article 5 – The right to organise “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 33.     Article 6 of the European Social Charter (revised), not yet ratified by Turkey, contains the following provision concerning the right to bargain collectively: Article 6 – The right to bargain collectively “With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1.     to promote joint consultation between workers and employers; 2.     to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3.     to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4.     the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” 34 .     The relevant parts of the case-law of the European Committee of Social Rights (ECSR), as reproduced in that body’s Case-Law Digest (December 2018: https://rm.coe.int/digest-2018-parts-i-ii-iii-iv-en/1680939f80), are cited below. “6.4   With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into. Appendix: It is understood that each Party may, insofar as it is concerned, regulate the exercise of the right to strike by law, provided that any further restriction that this might place on the right can be justified under the terms of Article G. Article 6§4 guarantees the right to strike and the right to call a lock-out [554] . The right may result from statutory law or case-law [555] . ... 1.     Group entitled to call a collective action The decision to call a strike can be taken only by a trade union provided that forming a trade union is not subject to excessive formalities [562] [563] . The Committee considers that the reference to “workers” in Article 6§4 relates to those who are entitled to take part in collective action but says nothing about those empowered to call a strike. In other words, this provision does not require states to grant any group of workers authority to call a strike but leaves them the option of deciding which groups shall have this right and thus of restricting the right to call strikes to trade unions. On the contrary, limiting the right to call a strike to the representative or the most representative trade unions constitutes a restriction which is not in conformity with Article 6§4 [564] . Once a strike has been called, any employee concerned, irrespective of whether he is a member of the trade union having called the strike or not, has the right to participate in the strike [565] . 2.     Permitted objectives of collective action Article 6§4 applies to conflicts of interests. It does not concern conflicts of rights, i.e. related to the existence, validity or interpretation of a collective agreement and to the violation of a collective agreement [566] . Political strikes are not covered by Article 6, which is designed to protect “the right to bargain collectively”, such strikes being obviously quite outside the purview of collective bargaining [567] . ... 3.     Specific restrictions to the right to strike The right to strike may be restricted provided that any restriction satisfies the conditions laid down in Article G which provides that restrictions on the rights guaranteed by the Charter that are prescribed by law, serve a legitimate purpose and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals [569] . The expression “prescribed by law” means, not only statutory law, but also case-law of domestic courts, if it is stable and foreseeable. Moreover this expression includes the respect of fair procedures [570] . The prohibition of certain types of collective action, or even the introduction of a general legislative limitation of the right to collective action in order to prevent initiatives aimed at achieving illegitimate or abusive goals (e.g. goals which do not relate to the enjoyment of labour rights, or relate to discriminatory objectives) is not necessarily contrary to Article 6§4 of the Charter. In this context, excessive or abusive forms of collective action, such as extended blockades, which would put at risk the maintenance of public order or unduly limit the rights and freedoms of others (such as the right of co-workers to work, or the right of employers to engage in a gainful occupation) may be limited or prohibited by law [571] . In contrast, national legislation which prevents a priori the exercise of the right to collective action, or permits the exercise of this right only in so far as it is necessary to obtain given minimum working standards are not in conformity with Article 6§4 of the Charter, as it infringes the fundamental right of workers and trade unions to engage in collective action for the protection of economic and social interests of the workers [572] . ... 4.     Procedural requirements ... b) Other procedural requirements Subjecting the exercise of the right to strike to prior approval by a certain percentage of workers is in conformity with Article 6§4, provided that the ballot method, the quorum and the majority required are not such that the exercise of the right to strike is excessively limited [587] [588] . The exhaustion of conciliation/mediation procedures requirement before strike is in conformity with Article 6§4 – given Article 6§3 – as long as such machinery is not so slow that the deterrent effect of a strike is affected [589] . Periods of notice or cooling-off periods prescribed in connection with pre-strike conciliation procedures are in conformity with Article 6§4 as long as they are of a reasonable duration [590] . ... 5.     Consequences of a strike A strike should not be considered a violation of the contractual obligations of the striking employees entailing a breach of their employment contract. It should be accompanied by a prohibition of dismissal. If however, in practice, strikers are fully reinstated when the strike has ended and their previously acquired entitlements (e.g. concerning pensions, holidays and seniority) are not affected, then formal termination of the employment contract does not violate Article 6§4 [592] 592 . ...” COMPLAINTS 35.     The applicants complained under Article   11 of the Convention of an infringement of their trade-union rights owing to their dismissal for having taken part in a strike and of the courts’ rejection of their claims seeking reinstatement and compensation. They submitted that it was incompatible with the duty of equal treatment in matters of employment-contract termination to have terminated the contracts of the employees concerned, namely those who had made certain demands concerning their working conditions, for the purpose of dissuading other employees who continued working and of preventing employees from asserting their legitimate claims . THE LAW 36.     The applicants referred to Article 11 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.     No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 37.     Given the similarity between the applications, the Court has decided to join them and to examine them jointly in a single judgment. 38.     The Government raised three objections to the admission of the applications, namely that they were incompatible ratione materiae with the Convention, that domestic remedies had not been exhausted and that the complaints were manifestly ill-founded. 39.     As to the question of compatibility ratione materiae , the Government requested that the Court declare the applications inadmissible on the grounds that they were incompatible ratione materiae with the Convention. Referring to the Court’s case-law, they noted the following: in order to protect their interests, the members of a union have the right for their union to be heard; Article   11 §   1 of the Convention certainly leaves to each State a free choice as to the means to be used towards this end, and the Contracting States enjoy a wide margin of appreciation in deciding exactly what possibilities should be afforded to unions for that purpose; what the Convention requires is that under national law, trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests . 40.     The Government pointed out that, in the present case, no one was contesting the fact that the Türk Metal union was able to carry on various activities vis-à-vis the employer and that it was thus free, for instance, to present demands, defend the interests of all or some of its members, negotiate and enter into a collective agreement and call a strike where the statutory conditions were met. They further noted that no one was alleging that actions taken by the union had been ignored by the employer or the national authorities. They added, however, that although the workers were members of a union, they had resorted to an action without the consent of a “collective actor”. The Government further observed as follows: the fact that the Court’s case-law links recognition of the right to strike with freedom of (trade union) association inevitably meant that the Convention did not guarantee workers the right to resort to spontaneous strikes, that is to say neither authorised nor organised by trade unions; in fact, the nexus between the right to strike and the right to organise logically entailed the conclusion that such actions did not fall within the ambit of Article 11 of the Convention; the only protection potentially afforded could stem from the exercise of freedom of assembly; and, in the present case, the workers did in fact have recourse to action without the consent of a “collective actor”, with the consequence that the case fell outside the scope of Article 11 of the Convention. The Government thus asked the Court to declare the applications inadmissible on the grounds that they were incompatible ratione materiae with the provisions of the Convention. 41.     The Court notes that the Government characterised the disputed collective action as “unlawful” or “spontaneous”, namely an action neither authorised nor organised by the unions, and argued that Article   11 of the Convention was not applicable to this type of protest. 42.     As regards the applicants, they argued that a demand by employees for an appropriate working environment that respected their freedom to choose a trade union could not be equated with an unlawful strike or absenteeism. 43.     The Court must first determine whether the action at issue comes within the scope of Article   11 of the Convention or, as the Government argued, it does not. In other words, the Court has first to address the relevant issue, which is not whether individual employees, taking part in an action that was not organised by a trade union, are entitled under national or international law to call or take part in a strike, but rather whether such a right falls within the scope of Article   11. 44.   The Court first reiterates that Article 11 of the Convention safeguards freedom to protect the occupational interests of members of a trade union through the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see Demir and Baykara v. Turkey [GC], no. 34503/97, §   140, ECHR 2008). Paragraph 1 of that Article affords members of a trade union the right for their union to be heard with a view to protecting their interests, but leaves each State a free choice as to the means to be used towards this end. What the Convention requires is that under national law, trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts), and Tek Gıda İş Sendikası v. Turkey , no.   35009/05, § 32, 4   April 2017). 45.     The Court further notes that, according to its settled case-law, strikes are in principle protected under Article   11 of the Convention. However, it considers that a protected strike under Article   11 is an instrument available to a trade union for protecting the occupational interests of its members. The Court has never recognised that Article 11 could also protect a strike conducted not by a union itself, but by members of that union or non-members (see in particular Karaçay v. Turkey , no.   6615/03, 27 March 2007, and the case-law summarised in the decision in the case of Association of Academics v. Iceland , no.   2451/16, §§ 24-27, 15 May 2018). All those cases concerned union-led strikes or go-slow actions that amounted to strikes (see in this regard Dilek and Others v. Turkey , nos.   74611/01 and 2 others, 17   July 2007). In other words, strike actions are in principle protected by Article   11 only in so far as they are called by trade-union organisations and are considered to form an actual – as opposed to a merely presumed – part of trade-union activity. 46.     In addition, taking into account international law sources other than the Convention, their interpretation by the relevant bodies and the practice of European States reflecting their common values (as emphasised in the Demir and Baykara judgment, cited above, § 85), the Court further observes that, according to the findings of the European Committee of Social Rights, reserving the right to call strikes for trade unions alone complies with Article   6   §   4 of the European Social Charter, provided that forming a trade union is not subject to excessive formalities (see paragraph