Blanket ban on the right of military personnel to form and join a trade union violates Article 11 ECHR

This guest post was written by Isabelle Van Hiel, PhD Researcher and Teaching Assistant at the social law section of the Department of Criminology, Criminal Law and Social Law of the Law Faculty of Ghent University.

In two recent cases of 2 October 2014 the ECtHR had to decide on the freedom of association of military personnel. Although the Court already examined cases involving trade union freedom within the police and the civil service, it was the first time that the Court considered the specific situation of the armed forces.

In Matelly v. France (application no. 10609/10), an officer in the French gendarmerie which forms in France a part of the military, was forced to resign from an association named Forum gendarmes et citoyens. The forum was considered by the Director General of the National Gendarmerie as a trade-union-like occupational group, which was prohibited under Article L. 4121-4 of the Defence Code. In ADEFDROMIL v. France (application no. 32191/09) the Association de Défense des Droits des Militaires (ADEFDROMIL), a professional organisation for servicemen, complained about its denial of access to justice, as it was considered to be in breach of the same provisions of Article L. 4121-4 of the Defence Code. This article L. 4121-4 declares the existence of occupational organisations for military personnel as well as the membership of such organisations incompatible with the prescriptions of the military discipline[1].

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A missed opportunity: how the Court’s judgment is commendable for seeking to protect religious minorities but nevertheless wide of the mark

This guest post was written by Lieselot Verdonck. Lieselot is a Ph.D. Candidate at the Human Rights Centre, Faculty of Law of Ghent University. More information on the author can be found here.

The relationship between State and Church has always drawn much interest. It constitutes an inherently sensitive and political issue, which touches upon one of the foundations of a democratic society and concerns any member of that society, whether religious, atheist or agnostic. Accordingly, the European Court of Human Rights inevitably has to face cases concerning the foundational issue of Church-State relations, such as in Magyar Keresztény Mennonita Egyház & Others v. Hungary. The Court’s decision in this case is, however, remarkable for its general and far-reaching statements that leave not only scholars but also governments guessing about their future application. Continue reading

Strasbourg Court fails to adequately protect trade union freedom: secondary strike action only considered to be an ‘accessory’ aspect of Article 11 (R.M.T. v. UK)

According to the Strasbourg Court’s established case law, the right to strike action is protected by Article 11 ECHR (e.g. Enerji Yapi-Yol Sen v. Turkey), which more generally protects the right of trade unions to strive for the protection of their members’ interests (e.g. Demir and Baykara v. Turkey). In the recent case of R.M.T. v. UK, the Court for the first time had to rule on a case concerning so-called secondary strike action, i.e. a strike organized by trade union members in one company in support of a strike initiated in another company. The United Kingdom is one of the few Council of Europe member states – together with Austria, Luxembourg and the Netherlands – in which a total prohibition on secondary strike action is in place. In its judgment of 8 April, the Court nonetheless did not consider such a blanket ban to be contrary to Article 11.

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Vona v Hungary: Freedom of association and assembly can be restricted to protect Minority Rights

This guest post was written by Judit Geller and Dezideriu Gergely, European Roma Rights Centre.

In the case of Vona v Hungary, the European Court of Human Rights (ECtHR) openly stood up against racism and hatred when it ruled that if an association’s activities amounts to widespread racist intimidation of a group then the association can be banned lawfully without contravening to the European Convention of Human Rights. This is the first case when the Court ruled on the dissolution of an association under Article 11 of the Convention. Continue reading

Herrmann v. Germany (GC): the importance of precedent and Strasbourg ‘micromanagement’

This guest post was written by Ingrid Leijten, Ph.D. researcher and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law.

On 26 June 2012 the Grand Chamber delivered its judgment in the case of Herrmann v. Germany. It found a violation of Article 1 of Protocol No. 1 concerning the involuntary membership of a hunting organisation of a small landowner who was opposed to hunting. The judgment has been commented upon in Germany—where practical consequences and the argument that Strasbourg should not have dealt with this issue in the first place are stressed—as well as elsewhere. My aim is to add something by discussing the importance the Court attached to precedent. The Grand Chamber made it appear inevitable to repeat its earlier conclusion in the case of Chassagnou and Others v. France, that was later confirmed in Schneider v. Luxembourg. But could it really do nothing but ‘follow precedent’ or did it, after all, have a choice? Either way, by entirely focussing on prior case law, what considerations did the Grand Chamber leave out?

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