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FIRST SECTION

Application no. 44873/09
Aleksey Anatolyevich OGNEVENKO
against Russia
lodged on 28 July 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Aleksey Anatolyevich Ognevenko, is a Russian national who was born in 1972 and lives in the town of Zheleznodorozhniy. His application was lodged on 28 July 2009.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a locomotive driver at the Russian Railways in the Moscow Region. Following the privatisation of the railways in the 1990s, the applicant’s employer was incorporated as a public limited company “OAO Rossiyskiye Zhelezniye Dorogy”. The applicant was a member of one of the trade unions of the railway workers, “Rosprofzhel” (“the trade union”).

On 7 April 2008 the trade union entered into negotiations with the Russian Railways claiming a general pay raise and introduction of long-service bonuses for the staff. The trade union also requested to discontinue the practice of discrimination of its members as opposed to the members of other trade unions. The claims of the trade-union were forwarded to the management of the Russian Railways. The negotiations failed, so the trade-union organised a strike. On 25 April 2008 the trade union committee recommended that the staff of two suburban depots participate in the strike. According to the applicant, Russian Railways did not apply to the courts to declare the strike illegal.

On 28 April 2008 the applicant took part in that strike. The strike caused delays in circulation of the trains in the sector where the applicant worked.

On 12 May 2008 the Russian Railways by a letter informed the trade union about the applicant’s eventual dismissal. The trade union objected. On 23 May 2008 the representatives of the management met the trade union leaders in order to discuss the case, but no agreement was reached.

On 9 July 2008 the applicant was dismissed for double breach of discipline rules. The first breach imputed to him had no relation to his trade-union activities. The second breach was his participation in the strike on 28 April 2008.

The applicant complained about his dismissal to the court. He complained, inter alia, that the strike had not been declared illegal by a court decision, and, therefore, he had a right to participate in it.

On 19 August 2008 the case was heard by the Meschanskiy District Court of Moscow. The court confirmed the lawfulness of the applicant’s dismissal. The court relied on the Railways Act of 2003 (the Law of 10 January 2003 No. 17-FZ). Article 17 of the Act prohibited strikes of personnel of railways responsible for the circulation of the trains, shunting, and services to the passengers, senders and recipients of cargo. The court stressed that those limitations were aimed at securing safety at the railways, and that railway workers were subjected to more strict discipline rules than the workers of other sectors of industry. The applicant was a locomotive driver. Therefore, his work was directly linked with the circulation of trains. The District Court concluded that the exception of Article 17 covered the applicant’s case and that he had been precluded from participating in the strike.

On 29 January 2009 the Moscow City Court confirmed the judgment of 19 August 2008 on appeal.

COMPLAINTS

Under Article 6 § 1 of the Convention the applicant complains that the court which examined his case was incompetent to declare the strike unlawful, because it was in the competence of the Moscow City Court. The applicant concluded that his case was not heard by a “tribunal established by law”.

The applicant complains under Article 11 of the Convention about his dismissal for the participation in the strike.

QUESTIONS TO THE PARTIES

1.  Was the applicant’s case heard by a “tribunal established by law”, as required by Article 6 § 1 of the Convention, in view of the applicant’s allegation that a separate court decision declaring the strike unlawful had been required before the court could have examined the disciplinary sanction imposed on him, and the lawfulness of his dismissal?

2.  Was there an interference with the applicant’s rights under Article 11 of the Convention by a public authority in this case, in connection with the applicant’s dismissal from job for his participation in the strike? Did the State in this case comply with its positive obligations vis-à-vis the applicant?

3.  Was the applicant’s dismissal from job for the participation in the strike, and, more generally, the prohibition for certain categories of railway workers to participate in strikes, compatible with Article 11 of the Convention? In particular, was the measure applied to the applicant lawfully? What “legitimate aim” did it pursue? Was that measure necessary in a democratic society?