Strasbourg Observers

Narrowing and Shallowing: Restricting the Right to Strike under Art. 11 ECHR in Kaya v. Türkiye and Almaz v. Türkiye

January 21, 2025

By Gaia Zanotti

While Art.11 of the European Convention of Human Rights (‘ECHR’) protects the right to “form and join trade unions for the protection of [one’s] interests,” it does not explicitly address the tools trade unions may employ, like collective bargaining and collective action, including strikes. The status of the right to strike has remained uncertain until the relatively recent Humpert decision, which confirmed its inclusion under Art.11 and outlined some parameters for its legitimate exercise.

With the Kaya and Almaz admissibility decisions, the European Court of Human Rights (‘the Court’ or ‘ECtHR’) is addressing some of the first significant cases post-Humpert. These cases mark a shift toward grappling with deeper questions about industrial relations: the permissible purposes of strikes. The right to strike is inherently contentious, with international frameworks often reflecting states’ attempts to curtail it. Central to this debate are teleological limitations—defining the purposes for which strikes may be undertaken in order to fall within the protective scope of the right.

This issue touches on broader questions about industrial relations and the role of social partners. Should trade unions operate narrowly, negotiating only with direct employers in relation to labour conditions, or should they take on a broader, even overtly political, role in influencing government policies unrelated to their members’ immediate work?

Facts

The first case considered in this post, Kaya,concerned a public-school teacher who was subjected to a disciplinary sanction for being absent from work to participate in a strike organised by the trade union of which she was a member. The aim of the strike, consisting of a one-day work stoppage, was to protest against a curfew regime recently introduced in the south eastern part of Turkey, in which the applicant does not live, under the slogan ‘stop the war’ and to raise awareness of the highly disruptive effects the curfew would have on the educational infrastructure.

Similarly, the applicants in Almaz were public sector workers who had participated in a strike and had a received a disciplinary sanction for their unauthorised absence. The aim of the strike was to protest the government’s response to the Gezi Park protests, in which many individuals were injured and lost their life.

Both sets of applicants claimed that the disciplinary sanctions they faced were in contravention of Art.11 ECHR, as they were being punished for participating in a strike organised by the trade union of which they were members.

Judgement and Analysis

The Court employed nearly identical reasoning in both decisions.

First, it reaffirmed that collective action is protected under Art.11, in accordance with the criteria established in Humpert, namely, that for a strike to fall under the protective scope of Art.11, it must be called by a recognized trade union and may be subject to restrictions in relation to civil service or essential services.

However, the core issue in these decisions was the purpose—or telos—of the strikes. Art. 11 safeguards the right “form and join trade unions for the protection of [one’s] interests.” Thus, the Court focused on whether the applicants’ actions aligned with this protected purpose and in order to determine if the contested strike actions could fall within the scope of the right to strike as protected by Art.11.

The Court observed that in previous jurisprudence, strikes that had been deemed to fall under the scope of Art.11 had consistently related to the socio-economic interests or working conditions of the striking workers. By contrast, in the two present cases, the Court found that the strikes pursued aims not sufficiently linked to the applicants’ professional interests. In Kaya, the Court noted that the protection of the right to education in areas affected by the curfew was too abstract to establish a connection with the applicant’s own professional interests. Similarly, in Almaz, the trade union’s primary objective was to protest against “the Government’s repressive and violent practices,” a purpose wholly unrelated to the professional interests of the striking workers. Both strikes, therefore, were deemed to fall outside the scope of protected trade union activities under Art.11. Furthermore, the Court held that strikes with explicitly political objectives cannot fall within the protective scope of Art.11. In Kaya, the slogan “no to war” underscored the primarily political aim of the action. Likewise, in Almaz, the strike, organized exclusively in response to state actions unconnected to the applicants’ working conditions, was deemed entirely political in nature. The Court did not clarify the precise relationship between the two criteria for protection under Art.11. The decisions suggest that an exclusively political strike is inherently disconnected from workers’ interest, but it is less clear whether the finding that a strike has an explicitly political aim is necessary for finding it unconnected with the socio-economic interests of striking workers and, consequently, excluding it from the protective scope of Art.11.

Finally, the Court emphasized that in neither case were the applicants sanctioned for their membership in a trade union. Rather, the disciplinary measures arose solely from their unauthorized absence from work. On this basis, the Court concluded that the complaints were inadmissible ratione materiae, as the strikes in question fell outside the scope of protection of Art.11.

Discussion

Teleological Limitations on Strikes

In previous jurisprudence, the Court hardly considered the intended purpose of collective actions when assessing whether an interference with Art.11 had occurred. Rather, the Court’s prior decisions suggested that a more symbolic connection between the aims of a strike and the interests of striking workers would be sufficient. In Sadrettin, the Court found that the respondent state could not prohibit a strike commemorating victims of a decades-old protest. The action had little direct connection with working conditions, other than that of fostering a culture of industrial relations, especially as the strike coincided with Labour Day. Therefore, by basing these decisions primarily on the telos of the strikes, the Court introduced a new element to the criteria for determining whether collective action falls under the protective scope of Art.11.

In addition to adding this new element, the present decisions adopt a particularly restrictive interpretation of Art.11. The Court read Art.11’s provision protecting the right to form and join trade unions “for the protection of [one’s] interests” as confining trade union activities like strikes to aims connected with the socio-economic interests of the individuals involved. This reading narrows the material scope of the right to strike, framing it as a tool for individual workers to advance their own working conditions through collective methods, rather than as a mechanism for trade unions to negotiate broader issues that may not directly affect every member. Under this interpretation, solidarity strikes, i.e. collective action undertaken in support of workers in other undertakings or sectors, may no longer be protected as an element of freedom of association. This potential consequence is already apparent in Kaya, where the Court failed to recognize the applicants’ intent to show solidarity with colleagues who were adversely affected by the curfew.

The Court’s finding that neither the applicants in Kaya nor Almaz had a vested socio-economic interest in the strikes’ purposes is also questionable. Both cases involved public sector workers protesting against actions by their employer: the government. In Kaya particularly, the applicant’s actions could be interpreted as demonstrating support for colleagues not only in the same sector but within the same undertaking: the public education system. However, the Court dismissed this socio-economic link on the grounds that the strike’s aims did not directly affect the applicants’ own working conditions.

The fact that the employer in question was the state complicates the issue further, as it raises questions about the political nature of industrial relations. Yet the Court’s reasoning—that strikes unrelated to individual working conditions may not be protected—has potentially troubling implications for the private sector. A more expansive role for trade unions in contesting employers’ actions, even those not directly tied to working conditions, may be highly desirable, especially in light of the current state of the European labour market, marked by fragmentation, precarious work, and transnational supply chains. Not all workers are able to participate effectively in industrial relations, whether due to national laws restricting their rights based on contractual status or the challenges posed by globalised employment structures. In such circumstances, the ability of trade unions to provide support and solidarity to more vulnerable workers becomes crucial—especially given the Humpert criteria requiring collective action to be called by a recognised trade union.

Political Aims of Strikes

A second central point in the Court’s reasoning regarding teleological limitations on strikes is its assertion that political aims fall outside the protective scope of Art.11.

The question of whether trade unions may serve partially political purposes has long been contentious. This issue becomes particularly complex in the context of the ECHR, where Art.11 protects the rights to establish trade unions, engage in protests, and form or participate in political associations. However, the interplay between these rights generates significant ambiguities. It is not always clear whether the use of industrial tools by trade unions aligns with democratic principles or represents an illegitimate interference in political processes, resulting in the side-lining of democratic principles, that the ECHR itself seeks to uphold.

The Grand Chamber’s decision in Humpert, which confirmed that Art.11 includes the right to strike, emphasized the separation of this right from freedom of association. This distinction suggests that industrial tools such as collective action might be confined to industrial disputes, leaving political purposes outside the scope of protection. However, Humpert did not articulate any teleological limitations on the right to strike and did not provide criteria or a rationale under which strikes may be excluded from the scope of Art.11 on account on their political aims.

This issue is contentious for good reason. It is very difficult to determine where political purposes end and where socio-economic or industrial purposes begin. Trade unions frequently interact with governmental actors for reasons such as sector regulation or public policy, which blurs the line between industrial and political objectives. This manifests itself in different ways. For example, public or administrative roles clearly involve employment relationships but also often place workers in closer proximity to the political sphere as those occupations may concern services that are central to the state’s administration or even directly engage state responsibility. Nevertheless, these concerns have not been decisive for the Court, as several key cases in the ECtHR jurisprudence, such as the landmark cases Demir and Enerji, which expanded the scope of Art.11, involved public-sector workers.  Moreover, collective action may be explicitly aimed to obstruct or otherwise affect democratic or political processes, but the Court has not viewed this form of interference as inherently problematic either. In the cases of Dilek  and Kaya and Seyhan,  which concerned strikes explicitly aimed at influencing parliamentary debates on public work policies, the Court found that the disputed strikes were protected under Art.11.

The distinguishing political feature in Kaya and Almaz appears not to be concerns about interference with parliamentary democracy or national administration, but rather the contestation of controversial emergency measures adopted by the state. In Kaya, the strike aimed to challenge a curfew supposedly implemented in preparation of a military offensive, which is itself the object of multiple applications to the ECtHR. While in Almaz, the strike sought to oppose significant measures intended to maintain public order amid large-scale demonstrations, which themselves constituted the context of Kavala in which the ECtHR found the Turkish government to have committed a violation of Art.5, the right to liberty and security. The Court in Kaya and Almaz excluded these strike actions from the scope of Art.11’s solely on the basis of their political aims and their disconnect from the workers’ own interests, without addressing the legitimacy, necessity, or proportionality of the emergency measures contested by the applicants.

This narrow reasoning contrasts with earlier case law, which demonstrated the Court’s acceptance of a limited degree of trade union influence on democratic institutions, even parliamentary debates, on the basis of a link to socio-economic interests. This is hard to reconcile with the exclusion of contestation of controversial emergency measures in the present decisions, which is a context in which social partners could potentially provide a mechanism of democratic accountability, strengthening democracy rather than unduly altering its processes.

Departing from the Integrated Approach to Interpretation?

In previous decisions entrenching collective labour rights, like Demir, Enerji or Humpert, the ECtHR relied on other international standards like those from the International Labour Organisation (ILO), or the ECHR’s socio-economic counterpart, the European Social Charter (ESC). Both of these regimes provide, at the time of writing, explicit protection to collective labour rights and have over the years developed specific doctrines and expertise.

In both Kaya and Almaz, the Court notably failed to consider the standards set by the ILO or the ESC. Crucially, its reasoning diverged significantly from these frameworks. The ILO establishes some of the most stringent rules regarding teleological limitations on strikes, allowing states to prohibit only strikes that are purely political, while protecting solidarity strikes. In contrast, the ESC adopts a less expansive approach, safeguarding strikes that address “conflicts of interest” i.e. pertaining to labour conditions. This protection extends to strikes related to labour conditions, as determined by the objectives of the trade union as a whole, rather than focusing on the motivations of individual workers participating in the strike—an apparent requirement in the ECtHR’s reasoning, particularly in Kaya. If the ECtHR upholds the line of reasoning displayed in the present cases, it risks establishing a significantly narrower interpretation of the right to strike compared to its international counterparts.

Conclusion

In conclusion, the shift in the ECtHR’s approach introduces a narrow interpretation of the telos of the right to strike, restricting its protection primarily to actions with aims linked to striking workers’ interests. This has troubling implications for solidarity strikes and the broader role of trade unions, particularly in addressing the challenges posed by precarious and fragmented labour markets.

 The exclusion of political purposes in the present cases is also questionable, especially considering that previous decisions recognized strikes, despite the involvement of public sector workers or the intent of these strikes to influence parliamentary debates, as falling within the protective scope of Art.11. In contrast, the strikes in these cases, which contested highly controversial measures, were excluded—implying that the role of social partners is confined solely to negotiating industrial matters.

Furthermore, the Court’s reasoning in the present cases omitted any reference to ILO or ESC standards and substantively departed from international standards, resulting in a significantly narrower scope of collective action as protected under the ECtHR. This shift represents a concerning limitation on the transformative potential of trade unions to influence sectoral regulations and uphold labour rights more broadly.

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