CEDH · CASELAW;CLIN;ENG — 30 juillet 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 121 July 2009 Danilenkov and Others v. Russia - 67336/01 Judgment 30.7.2009 [Section V] Article 14 Discrimination State’s failure to afford effective judicial protection against discrimination on the ground of trade-union membership: violation   Facts : The applicants, who were members of a local branch of the Dockers’ Union of Russia (DUR), were employed by a private company called Kaliningrad Commercial Seaport. In 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. In the period following, DUR members found themselves reassigned to special work teams, transferred to part-time positions, and ultimately declared redundant and dismissed as a result of a structural reorganisation of the company. The applicants responded to these and other actions by bringing a number of cases to the local courts in which they complained of unlawful and discriminatory treatment based on their union membership. In each instance, the civil courts ruled in favour of the applicants, reversing the company’s decisions and ordering payment of compensation for lost wages. Their discrimination complaints were repeatedly dismissed, however, on the grounds that the existence of discrimination could only be established in the framework of criminal proceedings. The applicants were unable to launch a criminal case, because legal entities such as the seaport company could not be held liable and the prosecutor’s office declined to open a criminal investigation against the managing director of the company, as a preliminary inquiry had failed to establish direct intent by the director to discriminate against the applicants. In addition to going to the courts, the DUR complained to the International Transport Workers’ Federation (ITF) and the regional Duma. Both the ITF and the Duma recognised the existence of discrimination based on trade-union membership and called for the DUR members’ rights to be respected. Despite these warnings and the courts’ repeated rulings overturning the company’s anti-DUR policies, DUR membership decreased from 290 in 1999 to only 24 in 2001. Law : Any employee or worker should be free to join or not to join a trade union without being sanctioned. It was crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge such treatment and to have the right to take legal action capable of ensuring real and effective relief. The seaport company had used various techniques to encourage employees to relinquish their union membership, including their re-assignment to special work teams with limited opportunities, dismissals that were subsequently found unlawful by the courts, wage reductions, disciplinary sanctions, and refusing to reinstate DUR members following court judgments. The clear negative effects that DUR membership had on the applicants were sufficient to constitute a prima facie case of discrimination in their enjoyment of the rights guaranteed by Article 11 of the Convention. Russian law contained a blanket prohibition on all discrimination on the ground of trade-union membership or non-membership and the applicants were entitled to have their discrimination complaints examined by a court by virtue of the general rules of the Russian Civil Code and the lex specialis contained in the Trade Union Act. These provisions had remained ineffective in the instant case, as the domestic judicial authorities had refused to entertain the applicants’ discrimination complaints, on the grounds that the existence of discrimination could be established in criminal proceedings only. However, as regards the criminal remedy, its main deficiency was that, being based on the principle of personal liability, it required proof “beyond reasonable doubt” of direct intent by the company’s key managers to discriminate against the trade-union members; failure to establish such intent led to decisions not to institute criminal proceedings. Furthermore, victims of discrimination had only a minor role in the institution and conduct of criminal proceedings. The Court was thus not persuaded that a criminal prosecution, which depended on the ability of the prosecuting authorities to unmask offenders and prove direct intent to discriminate, could have provided adequate and practicable redress in respect of the alleged anti-union discrimination. Alternatively, civil proceedings would allow the far more delicate task of examining all the elements of the relationship between the applicants and their employer, including the use of a combination of techniques to induce dockers to relinquish their DUR membership, to be fulfilled and appropriate redress to be granted. The lack of protection of the applicants’ right not to be discriminated against could entail fear of potential discrimination and discourage potential members from joining the trade-union, which might in turn lead to its disappearance. In sum, the State had failed to fulfil its positive obligations to afford effective and clear judicial protection against discrimination on the ground of trade-union membership. Conclusion : violation (unanimously). Article 41 – EUR 2,500 each in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes