In the case of Trade Union of the Police in the SlovakRepublicand Others v. Slovakia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
JosepCasadevall, President,
EgbertMyjer,
AlvinaGyulumyan,
JánŠikuta,
LuisLópez Guerra,
NonaTsotsoria,
KristinaPardalos, judges,
andSantiago Quesada, Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
11828/08) against the Slovak Republic lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”)by the Trade Union of the Police in the Slovak Republic (Odborový
zväz polície v Slovenskej republike) and three individuals who are members
of it (“the applicants”), on 16 February 2008.
The applicants were represented by Mr I. Syrový,
a lawyer practising in Bratislava. The Slovak Government (“the Government”)
were represented by their Agent, Ms M. Pirošíková.
The applicants alleged that their rights to freedom
of expression and freedom of assembly and association had been breached as a
result of statements made by the Minister of the Interior.
On 29 March 2011the application was communicated
to the Government. It also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The Trade Union of the Police in the SlovakRepublic (the first applicant) is registered as a trade union of members of the Police
Corps of the SlovakRepublic. It is a legal person with its registered office in
Bratislava. The application on its behalf was lodged by Mr M. Litva, the
trade union’s president. Mr Štefan Dvorský (the second applicant) is a Slovak
national who was born in 1960 and lives in Malacky. At the relevant time he was
vice-president of the first applicant association. Mr Marián Magdoško (the
third applicant) is a Slovak national who was born in 1962 and lives in Prešov.
He is the first applicant’s vice-president. Mr Karol Michalčík (the fourth
applicant) is a Slovak national who was born in 1953 and lives in Bratislava. He is a member of the first applicant association.
On 25 October 2005 the first applicant, of which
nearly 9,000 policemen were members at that time, organised a public meeting inone
of the mainsquares in Bratislava. Its aim was to protest against envisaged
legislative amendments concerning the social security of policemen and their
low remuneration. In its course the participants spontaneously shouted, inter
alia, that the Government should step down. One of the banners displayed by
the participants read“If the State doesn’t pay a policeman, the mafia will do
so with pleasure”.
Subsequently the Minister of the Interior
criticised the meeting and its organisers. He considered it to be an attempt to
involve policemen in politics, in particular because of the slogan calling for
the Government’s resignation, which he considered incompatible with the ethical
code of the police.
Apart from the public statements described below,
the Minister of the Interior, on 26 October 2005, removedMr Litva, the
president of the first applicant, from the post of director inthe police force
and assigned him to a different post as an ordinary policeman. At an
extra-ordinary general meeting of the police joint health insurance company
held on 3 November 2005, the third applicant was removed, upon aproposal
by the Minister of the Interior, from the company’s supervisory board. The
policeman who had carried the above-mentioned banner was summoned by the
inspection service of the Ministry of the Interior and was asked to explain its
content.
The applicants refer to the following public
statements by the Minister of the Interior in particular.
In an article published on 28 October 2005 in
the daily newspaperSme the Minister of the Interior was quoted as sayingthat
if anyoneacted contrary to the ethical code of the police again they“would be
dismissed”.
In an interview published in the same newspaperon
29 October 2005 the Minister stated that he did not challenge the
policemen’s right to elect their trade union representatives. He expressed the
view that, nevertheless, he was not obliged to negotiate with those
representatives as they had lost credibility.
In a TV debate broadcast on 30 October 2005 the
Minister of the Interior stated, among other things:
“Mr Litva was demotedbecause he misled ... the public, those
policemen whom he had lured out to the square... Mr Litva was not demotedbecause
ofhis opinion, but for having lied. He lied in that he called into question[the
fact] that the Government had money at their disposal for increasing policemen’s
salaries...
The Police Corps of the SlovakRepublic is an armed security
force. As such it must remain strictly apolitical. This means in practice, as
article 3 of the ethical code of the police indicates, that when expressing his
or her views in public a policeman must act in an impartial and reserved
manner, so that there can be no doubt about his or her impartiality. Thus
slogans calling for the Government’s resignation are in complete contradiction tothat
code... I am telling you, it will not be possible for excesses likethe onesat
that meeting to reoccur in the future. This is what I guarantee to you. If
a policeman behaves in such a way in the future, he or she will no
longerbe a policeman. I still proceeded in a particularly moderate manner
in this case, where the sanction appliedconcerned Mr Litva exclusively.”
On 1 December 2005 the applicants lodged a
complaint with the Constitutional Court. They alleged a breach of Articles 10
and 11 of the Convention and their constitutional equivalents. The applicants
specifically referred to the above-mentionedstatements of the Minister of the
Interior which had been published in Smeon 28 and 29 October 2005 and to
the statements he had made in context of the TV broadcast of 30 October 2005.
In particular, the applicants maintained that
the Minister’s statements, when considered in the light of his powers in
respect of the police, gave rise to a fear that members of the police force
would be sanctioned for availing themselves of their freedoms of expression,
assembly and association. There had been no breach of the Ethical Code of the
police in the context of the public meeting organised by the first applicant.
The Minister’s statements had been repressive, as hehad indicated that he was
not obliged to negotiate with the representatives of the first applicant. Those
statements, accompanied by the transfer of the president of the first applicant
to a different position, deterred the police from defending their rights
through their trade union.
On 18 October 2007 the Constitutional Court
found that the statements in question had not breached the applicants’ rights.
The judgment stated that the freedom of assembly
and association under Article 11 of the Convention and the ILO Convention No.
98 extended exclusively to natural persons. The Minister’s statements
complained of could not, therefore, amount to a breach of that freedom in
respect of the first applicant.
The Constitutional Court considered that, in the
context of the meeting held on 25 October 2005, the applicants had exercised
their right to freedom of expression. At the same time the second, third and
fourth applicants had exercised their righttofreedom of association with
others. They had doneso freely and independently ofthe will of the Minister of
the Interior. The Minister’s statements published in the media were to be
understood as part of a dialogue betweenboth parties, who had thus been given theopportunity
to express their opinions and standpoints.
Admittedly, the Minister’s statements could be
characterised as “bold and, from a certain point of view, capable of creatingan
atmosphere of fear”. However, their nature and intensity were not such as to
amount to a breach of the freedoms in issue.
The Constitutional Court further held that the
Minister of the Interior had been entitled to express his opinion on the
situation within the ministry for which he was politically responsible. His
statements represented an immediate reaction to ideas and views expressed at
the meeting. Those statements had not interfered with the applicants’ rights in
issue. They merely described a situation which might occur under specific circumstances.
However, the Constitutional Court was exclusively entitled to examine complaints
ofbreaches of rights which were based on facts that had actually occurred.
In a separate opinion to the decision on admissibility
one of the constitutional judges expressed the view that the applicants’
complaint should have been rejected for their failure to use the other remedies
available, namely, to seek redress by means of an action under the State
Liability Act 2003.
II. RELEVANT DOMESTIC LAW
A. Constitutional provisions
Article 26 § 1 guarantees to everyone freedom of
expression and the right to information. They can be restricted by law where it
is necessary in a democratic society for the protection of rights and
freedoms of others, the security of the State, public order or protection of
health and morals (paragraph 3 of Article 26).
Article 37 § 1 provides that everybody has the
right to free association with others for the protection of his or her economic
and social interests. Paragraph 3 of Article 37 allows for restriction by law
of the activities of trade unions and other associations where such measure is
indispensable in a democratic society for the protection of State security,
public order or the rights and freedoms of other persons.
Article 108 provides that the Government is the
supreme body of the executive branch of power. Under Article 116 § 1, a member
of the Government is responsible for the exercise of his or her function to the
National Council of the SlovakRepublic.
B. The Government and CentralState Administration
Organisation Act 2001 (Law no. 575/2001, as amended)
Section 11 provides that the Ministry of the
Interior is the central State administration authority in charge of, inter
alia, protection of the constitutional institutions, public order, security
of persons and property and of the Police Corps.
C. The Police Corps Act 1993
Pursuant to section 1(1), the Police Corps
fulfils duties in matters related to internal order, security andthe fight
against crime as well as duties resulting from the international obligations of
the SlovakRepublic. Its activity is controlled by the National Council of the SlovakRepublic and the Government (section 1(2)).
Section 6(1) provides that the Police Corps is
subordinated to the Minister of the Interior.
D. Law no. 73/1998 Coll.
Law no. 73/1998 governs, inter alia,
service in the Police Corps of the SlovakRepublic. Section 35(2) entitles the
Minister of the Interior to transfer a policeman from the position of a
superior to a different position where it is in the significant interest of the
service. The reasons for such a transfer need not be indicated.
Pursuant to section 225(1), trade unions ensure
the protection of the rights and justified interests of policemen in accordance
with the law.
Section 227(1) prohibits the dismissal of a
policeman on account of his or her acting as an elected trade union
representative.
Section 228 provides for co-operation between
high-ranking police officers and trade unions. It includes providing
information on the use of salary mass, respect for just remuneration,
information on staff-related measures and provisionof material and technical
equipmentfree of charge to trade unions.
Section 229 provides for collective bargaining
and collective agreements between the trade union bodies and police authorities
concerned with a view to protecting the justified interests and needs of the
members of the police corps.
E. Ethical Code of the Police
Article 3 of the Ethical Code of Members of the
Police Corps states that, when expressing their views in public, policemen
should act in an impartial and reserved manner so that they do not give rise to
doubts about their impartiality.
III. RELEVANT INTERNATIONAL
DOCUMENTS
A. International Labour
Organisation (ILO)
1. Convention No. 87 on Freedom of Association and
Protection of the Right to Organise
The relevant provisions of the ILO Convention
No. 87 on Freedom of Association and Protection of the Right to Organise
(adopted in 1948 and in force in respect of Slovakia since 1 January 1993)
provide as follows:
“Article 3
3.(1) Workers’ and employers’ organisations shall have the
right to draw up their constitutions and rules, to elect their representatives
in full freedom, to organise their administration and activities and to
formulate theirprogrammes.
3.(2) The public authorities shall refrain from any
interference which would restrict this right or impede the lawful exercise
thereof.
Article 9
9.(1)The extent to which the guarantees provided for in this
Convention shall apply to the armed forces and the police shall be determined
by national laws or regulations.”
2. Convention No. 98 on the Right to Organise and Collective
Bargaining
The ILO Convention No. 98 Concerning the
Application of the Principles of the Right to Organise and to Bargain
Collectively has been in force in respect of Slovakia since 1 January 1993. The
relevant provisions read as follows:
“Article 1
1. Workers shall enjoy adequate protection against acts of
anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of
acts calculated to-(...)
(b) cause the dismissal of or otherwise prejudice a worker by
reason of union membership or because of participation in union activities
outside working hours or, with the consent of the employer, within working
hours. (...)
Article 5
1. The extent to which the guarantees provided for in this
Convention shall apply to the armed forces and the police shall be determined
by national laws or regulations.”(...)
B. Council of Europe
Resolution 690 (1979) of the Parliamentary
Assembly of the Council of Europe includes the Declaration on the Police. Point
8 of part B of that declaration provides that membership of a police
professional organisation and playing an active part therein shall not be
detrimental to any police officer.
Recommendation of the Committee
of Ministersto member Stateson the European Code of Police
Ethics(Rec(2001)10) was
adopted on 19 September 2001. Part D concerns the rights of police
personnel. Its relevant parts read as follows:
“5.Police personnel shall be subject to the same legislation as
ordinary citizens, and exceptions may only be justified for reasons of the
proper performance of police work in a democratic society. (...)
12.The police shall be organised with a view to earning public
respect as professional upholders of the law and providers of services to the
public. (...)
31. Police staff shall as a rule enjoy the
same civil and political rights as other citizens. Restrictions to these rights
may only be made when they are necessary for the exercise of the functions of
the police in a democratic society, in accordance with the law, and in conformity
with the European Convention on Human Rights.
32. Police staff shall enjoy social and
economic rights, as public servants, to the fullest extent possible. In
particular, staff shall have the right to organise or to participate in
representative organisations, to receive an appropriate remuneration and social
security, ...”
THE LAW
ALLEGED VIOLATION OF
ARTICLES 10 AND 11 OF THE CONVENTION
The applicants complained that by his above-mentioned
statements and actions the Minister of the Interior had breached their rights
to freedom of expression and freedom of assembly and association. They relied
on Articles 10 and 11 of the Convention, which, in their relevant parts, read
as follows:
Article 10
“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the
judiciary.”
Article 11
“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.”
The Government contested the applicants’arguments.
A. Admissibility
The Government argued that the first, second and
fourth applicants lacked the standing of victims within the meaning of Article
34 of the Convention. In particular, no sanction or any other measure had been
taken in their respect in the context of the public meeting organised on
25 October 2005.
The Government further argued that it had been
open to the applicants to seek redress by means of an action under the State
Liability Act 2003 and also by means of an action for protection of their
personal rights under Articles 11 et seq. of the Civil Code. Accordingly, the
application should be rejected for the applicants’ failure to exhaust domestic
remedies.
The applicants disagreed with the Government’s
objections. They argued that the Constitutional Court had addressed their
complaint under Articles 10 and 11 of the Convention and that the impugned
statements had affected their rights. In particular, measures had been taken in
respect of the elected representatives of the first applicant, who represented
the interests of its members. Its president had been transferred to a lower
position in the police force. The third applicant, the vice-president of the
first applicant, had been removed from the supervisory board of the joint
health insurance company of the police force. The second and the fourth
applicants, as vice‑president and a member of the first applicant
respectively, had been intimidated by the Minister’s statements. They
considered that their positions within the police forcewould be under threat if
they continued their activities as members of the first applicant.
The Court reiterates that the rule of exhaustion
of domestic remedies referred to in Article 35 § 1 of the Convention obliges
those seeking to bring their case against the State before an international
judicial organ to use first the remedies provided by the national legal system.
Normal recourse should be had by an applicant to remedies which are available
and sufficient to afford redress in respect of the breaches alleged. Article 35
§ 1 also requires that the complaints intended to be made subsequently to
the Court should have been made to the appropriate domestic body at least in
substance and in compliance with the formal requirements (see Akdivar and
Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and
Decisions 1996‑IV).
Before the Constitutional Court theapplicants
specifically sought a finding of a breach of Articles 10 and 11 of the
Convention on account of the above-quotedstatements of the Minister of the
Interior which had been published in the newspaper Smeon 28 and 29
October 2005 and the statements he made during the TV broadcast of 30 October
2005 (see paragraphs 13 and 14 above).While the Constitutional Court Act 1993
requires prior use of other available remedies (see Borovský v. Slovakia,
no. 24528/02, § 27, 2 June 2009), the Constitutional Courtdid not requirethat
the applicants should have first filed an action under the State Liability Act
2003 or any other remedy.
The Constitutional Court, which is the supremeauthority charged with the protection of
human rights and fundamental freedoms in Slovakia, addressed
the applicants’ complaints and concluded that there had been no breach of
Articles 10 and 11 of the Convention on account of the impugned statements. To
the extent that their application concerns those statements, the applicants
were therefore not required, for the purpose of Article 35 § 1 of the
Convention, to have recourse to the remedies available before the ordinary
courts as argued by the Government (see also Lawyer Partners a.s. v. Slovakia,
nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08,
3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, §§
45-46, ECHR 2009, with further reference; or Štetiar and Šutek v.Slovakia,
nos. 20271/06 and 17517/07, §§ 71‑75,
23 November 2010).The objection concerning the applicants’ failure
to exhaust domestic remedies must therefore be dismissed to the extent that it
relates to the complaints which the applicants raised before the Constitutional
Court.
The Court takes the view that, in respect of
those complaints, the Government’s objection concerning the applicants’ status
as victims is closely linked and should be joined to the merits of the case.
The Court considers that the application, as far
is it concerns the issues which the applicants raised before the Constitutional Court, raises serious questions of fact and law which are of such complexity
that their determination should depend on an examination on the merits. It
cannot, therefore, be considered manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention, and no other ground for declaring it
inadmissible has been established. It must therefore be declared admissible.
To the extent that the applicants may be
understood to be complaining about facts other than those on which they sought
a Constitutional Court finding, such as the transfer of the president of
the first applicant association to a different position within the police force
or the removal of the third applicant from the supervisory board of the police health
insurance company, it does not appear from the documents submitted that they
sought redress for those grievances, in accordance with the formal
requirements, either before the civil courts or the Constitutional Court.
Inthat respect the Government’s objection must therefore be granted.
Accordingly, the Court declares inadmissible the remainder of the application.
B. Merits
1. The arguments of the parties
(a) The applicants
The applicants maintained that there had been an
unjustified interference with their rights under Articles 10 and 11 of the
Convention. They pointed to the fact that the public meeting in issue had been
organised by the first applicant as a trade union of members of the police
force. Its aim had been apolitical, namely, to defend the economic and social
rights and interests of the police in the context of envisaged legislative
amendments. While not denying the Minister’s right to react to the statements
made at the meeting, the applicants considered that his reaction had been
excessive as it had involved threats, including possible dismissal from the
police force, and a refusal to communicate with the representatives of the
first applicant.
Measures had been taken in respect of the
elected representatives of the first applicant in that, in particular, its
president had been transferred to a lower position in the police force.
The other applicantshad been intimidated by the Minister’s statements. They
considered that their positions within the police forcewould be under threat if
they continued their activities as representatives or members of the first
applicant association.
(b) The Government
The Government maintained, with reference to the
reasoning of the Constitutional Court, that the Minister’s statements had not
been contrary to the applicants’ rights under Articles 10 and 11 of the
Convention. The impugned statements had been part of a political debate about
the remuneration of the police and their right to criticise the policy of the
Government. They had been made in reaction to excessive and inappropriate views
expressed at the public meeting, such as calls for the Government to step down
and indication that police officers might be paid by the mafia. No
specific action had been taken in respect of the first, second or fourth
applicants.
2. The Court’s assessment
(a) Provision applicable to the present case
The Court notes that the facts of the present
case are such that the question of freedom of expression is closely related to
that of freedom of association in a trade-union context. It reiterates that the
protection of opinions and the freedom to express them, as secured by
Article 10, is one of the objectives of freedom of association as
enshrined in Article 11 (see Ezelin v. France, 26 April 1991, § 37, Series A
no. 202; Gorzelik and Others v. Poland [GC], no.44158/98, § 91, ECHR
2004‑I; orBarraco v. France, no. 31684/05, § 27, ECHR 2009).
The thrust of the applicants’ complaints relates
to the effect which the Minister’s statements had on the position and
activities of the first applicant as the trade union of the police force, and
the other applicants as its representatives or members. In these circumstances,
the Court considers that Article 11 takes precedence as the lex specialis
for the freedom of association and it will deal with the case principally under
this provision, whilst interpreting it in the light of Article 10 (see alsoZhechev
v. Bulgaria, no. 57045/00, § 33, 21 June 2007;Sergey Kuznetsov
v. Russia, no. 10877/04, § 23, 23 October 2008; and, to the
contrary, Palomo Sánchez and Others v. Spain [GC], nos.
28955/06, 28957/06, 28959/06 and 28964/06, § 52, ECHR 2011).
(b) The relevant principles
The relevant principles in the Court’s case-law
on freedom of association and the freedom of expression are set out, inter
alia, in National Union of Belgian Police v. Belgium, 27 October
1975, § 38-40, Series A no. 19;Swedish Engine Drivers’ Union v. Sweden,
6 February 1976, §§ 37‑39, Series A no. 20; Wilson, National
Union of Journalists and Others v. the United Kingdom, nos. 30668/96,
30671/96 and 30678/96, § 42, ECHR 2002-V; Tüm Haber Sen and Çınar
v. Turkey, no. 28602/95, §§ 28-29, ECHR 2006‑II; Demir
and Baykara v. Turkey [GC], no. 34503/97, § 109, ECHR 2008;Palomo
Sánchez and Others, cited above, §§ 56 and 76;Rekvényi v. Hungary [GC], no. 25390/94, § 43, ECHR 1999‑III; orGuja v. Moldova [GC],
no. 14277/04, §§ 70 and 71, ECHR 2008.They can be summed up as follows.
Article 11 § 1 presents tradeunion freedom as
one form or a special aspect of freedom of association. It safeguards freedom
to protect the occupational interests of tradeunion members by tradeunion
action, the conduct and development of which the Contracting States must both
permit and make possible. A trade union must thus be free to strive for the
protection of its members’ interests and the individual members have theright
that the trade union be heardin order to protect those interests. Article 11
does not, however, requireany particular treatment of trade unions or their
members and leaves each State a free choice of the means to be used to secure
their right to be heard.
For the purpose of guaranteeing the meaningful
and effective nature of trade union rights, the national authorities must
ensure that disproportionate penalties do not dissuade trade union
representatives from seeking to express and defend their members’ interests.In
order to be fruitful, labour relations must be based on mutual trust.
Paragraph 2 in fine of Article 11 of the
Conventionclearly indicates that the State is bound to respect the freedom of
assembly and association of its employees, subject to the possible imposition
of “lawful restrictions” in the case of members of its armed forces, police or
administration.
Employees owe to their employer a duty of
loyalty, reserve and discretion. Since the role of civil servants in a
democratic society is to assist the government in discharging its functions,
the duty of loyalty and reserve assumes special significance for them. Such
considerations apply equally to military personnel and police officers.
(c) Application of the relevant principles to the
present case
(i) Existence of any interference with the applicants’
rights
The Court reiterates that a “victim” of a breach
of rights or freedoms is the person directly affected by the act or omission
which is in issue (see Bączkowski and Others v. Poland, no. 1543/06, § 65, 3 May 2007).
The impugned statements of the Minister of the
Interior were made in response to statements pronounced or displayed in the
course of a public meeting organised by the first applicant as the trade union
of the police force, of which the other applicants are representatives and/or
members. The Minister’s statements indicated that he might no longer
communicate with the representatives of the first applicant, that he had
sanctioned its president by transferring him to a different position and that
he might sanction other policemen more severely (see paragraphs 10-12 above).
In these circumstances, the Court accepts that
the applicants were intimidated by the Minister’s statements,a situation which could
have thushad a chilling effect and discouraged them from pursuing activities
within the first applicant trade union, including organising or taking part in
similar meetings (see also, mutatis mutandis, Nurettin Aldemir and
Others v. Turkey, nos. 32124/02, 32126/02, 32129/02, 32132/02,
32133/02, 32137/02 and 32138/02, § 34, 18 December 2007).
The Court therefore considers that the
applicants were affected by the Minister’s statements and that there has
therefore been an interference with the exercise of their right to freedom of
association. Accordingly, the Government’s objection concerning the
alleged lack of the applicants’ victim status must be dismissed.
(ii) Compliance with Article 11read in the light of
Article 10 of the Convention
Such interference will constitute a breach of
Article 11 unless it was “prescribed by law”, pursued one or more legitimate
aims and was “necessary in a democratic society” for the achievement of those
aims.
The Court notes that thePolice Corps is
subordinated to the Minister of the Interior, who bears political
responsibility for its appropriate functioning in accordance with the
Constitution and the Police Corps Act 1993 (see paragraphs 23 and 26 above).The
Minister of the Interior indicated that his statements pursued the aim of
ensuring compliance with article 3 of the Ethical Code of Members of the Police
Corps. According to that provision, when expressing their views in public,
police officers must act in an impartial and reserved manner, so that there can
be no doubt about their impartiality.
In these circumstances, the Court considers that
theinterference complained of can be regarded as having been in accordance with
the law.
Its aim was to ensure appropriate behaviour on
the part of the police and maintainpublic trust in them. Those are
indispensable conditions for the discharge of the duties of the police, which
include ensuring public safety, prevention of disorder or crime and the
protection ofthe rights and freedoms of citizens. The interference in issue
therefore had a legitimate aim as required by the second paragraph of both
Articles 11 and 10 of the Convention.
For the purpose of determining whether an
interference is necessary in a democratic society, the adjective “necessary”,
within the meaning of Article 11 § 2, implies the existence of a “pressing
social need”.In that context, the Courtmustlook at the interference complained
of in the light of the case as a whole in order to determine whether it was
“proportionate to the legitimate aims pursued” and whether the reasons adduced
by the national authorities to justify it are “relevant and sufficient”. In so
doing, the Court has to satisfy itself that the national authorities applied
standards which were in conformity with the principles embodied in Article 11
and, moreover, that they based their decisions or actions on an acceptable
assessment of the relevant facts(see, for example, Yazar and Others v. Turkey,
nos. 22723/93, 22724/93 and 22725/93, § 51, ECHR 2002‑II).
The present case concerns interference with the
exercise of the trade union rights of members of the police force and their
trade union. It has been generally acknowledged that the duties and
responsibilities inherent in the position and role of the police justify
particular arrangements as regards the exercise of their trade union rights.
This follows from paragraph 2 of Article 11 of the Convention, the ILO
Conventions No. 87 and No. 98, and the European Code of Police
Ethics (see paragraphs 33-34 and 36‑37 above).
The documents submitted
indicate that the impugned statements of the Minister of the Interior were in
reaction to calls for the Government’s resignation and a slogan implying that
there was a risk that the police might get involved with the mafia if their
social rights were disregarded.
The police play a primordial role in ensuring
internal order and security and fighting crime. The duty of loyalty and reserve
assumes special significance for them, similarly as in the case of civil
servants (see paragraph 57 above). The call for the Government’s
resignation expressed at the meeting held on 25 October 2005 should be assessed
in the light of the above.
In these circumstances, the Court accepts that
the interference in issue,which aimed atensuring respect for the requirement
that police officers should act in an impartial manner when expressing their
views so that their reliability and trustworthiness in the eyes of the public
be maintained,corresponded to a “pressing social need”. It further considers
the reasons for that interference “relevant and sufficient”.
In assessing whether the interference was
proportionate to the legitimate aim pursued, the Court notes, on the one hand,
that the Constitutional Court had admitted that the Minister’s statements could
be characterised as “bold and, from a certain point of view, capable of creating
an atmosphere of fear” (see paragraph 18 above). In particular, the Minister
indicated that he would dismiss anyone “who acted contrary to the ethical code
of the police again”, that the first applicant’s representatives had “lost
credibility”, that he was “not obliged to negotiate with those
representatives”, and that he had sanctioned the first applicant’s president
for making what he considered to be false statements in the course of the
meeting of 25 October 2005.
On the other hand, the Court finds it relevant
that the Minister’s statements implying the possibility of the imposition of
further sanctions were exclusively directed against the above-mentioned calls
for the Government’s resignation, which he considered to be in breach of the
requirement that police officers should express their views in public in an
impartial and reserved manner. The Minister expressly acknowledged the right of
the police to elect their trade union representatives.
While it is true that he had stated that he was
not obliged to negotiate with those representatives who, in his view, had lost
credibility, it does not appear from the documents submitted that the first
applicant’s right to be heard was subsequently impaired. In particular, it has
not been shown that the first applicant was prevented from pursuing trade union
activities, organising other public meetings or from defending the rights of
its members through a variety of means for which the domestic law expressly
provides (see paragraphs 28 and 30-31 above). Similarly, there is no indication
that the other applicants were prevented, as a result of the impugned
statements or any consecutive action, from availing themselves of their freedom
of association as representatives or members of the first applicant
association.
Furthermore, theConstitutional Court established
that the Minister’s statements represented an immediate reaction to ideas and
views expressed at the meeting, and that he had been entitled to express his
opinion on the situation concerning the Ministry for which he was responsible
(see paragraph 19 above). There is no indication that the Minister’s statements
or the Constitutional Court’s view on them, detailed above, were based on an inappropriate
assessment of the relevant facts.
The Court therefore concludes that the means
employed in order to achieve the legitimate aim pursued were not
disproportionate.
There has accordingly been no violation of
Article 11 of the Convention read in the light of Article 10.
FOR THESE REASONS, THE COURT
1. Joins unanimouslyto the merits the
Government’s objection concerning the alleged lack of the applicants’ victim
status, in so far as it relates to the complaints which the applicants raised
before the Constitutional Court, and dismisses it;
2. Declaresunanimouslythe complaints under
Articles 10 and 11 of the Convention admissible to the extent that they
coincide with the complaints which the applicants raised before the Constitutional Court, and the remainder of the application inadmissible;
3. Holdsby five votes to twothat there has
been no violation of Article 11 of the Convention, read in the light of
Article 10.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Santiago
Quesada Josep
Casadevall Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of JudgesMyjer and
Gyulumyan is annexed to this judgment.
J.C.M.
S.Q.
DISSENTING OPINION OF JUDGE MYJER JOINED BY JUDGE GYULUMYAN
It is not uncommon for members of a trade union
and representatives of an employer’s organisation – when expressing their
views regarding theirrespective opponents – to
use expressions lacking in subtlety and finesse.
That seems to have been what happened in the present case. In a
reaction to what had been shouted and otherwise expressed at a public meeting
organised by the Trade Union of the Police, the Slovak Minister of the Interior
– the Minister responsible for the policemen concerned – made several public
statements in which he made it clear that any policeman acting contrary to the
ethical code of the police would be dismissed. And he also took action
accordingly.
The applicants complain that the Minister, in expressing
himself as he did, went too far and violated Article 11 of the Convention.
The statements were “bold and, from a certain point of view, capable of creating an atmosphere of fear”, in the measured language of the Slovak Constitutional Court. But, in the Constitutional
Court’s view, their nature and intensity were not such as to amount to a breach
of the trade union’s rights (see paragraph 18). The majority of the
Chamber “accept that the applicants were intimidated
by the Minister’s statements, a situation which could have thus had a chilling
effect and discouraged them from pursuing activities” within the trade union
(paragraph 60). But they go on to conclude thatthe means used were not
disproportionate (paragraph 75).
I do not agree with either conclusion. I am convinced that the Minister went beyond acceptable
limits in expressing himself thus. He went so far as to threatenthe (members of
the) Trade Union of the Police to make them keep silent or risk being
dismissed. In my view this is an infringement of Article 11 of
the Convention
The facts in relation to the trade union public
meeting are described in paragraph 6. Three aspects seem to have caused the
anger of the Minister:
–the president of the Union, MrLitva,
had, as the Minister put it, lied during the meeting by calling into
question the official position “that the Government had money at their disposal
for increasing policemen’s salaries” (see paragraph 12);
– the participants hadspontaneously
shouted – inter alia – that the Government should step down;
– one of the banners displayed by the participants hadread: “If the State doesn’t pay a policeman, the mafia will do so with pleasure.”
The Minister’s reaction is described in
paragraphs 7-12. In the days following the trade union meeting he made
various forceful statements and took some measures. And although the
complaint is only admissible as far as the Minister’s statements are concerned, the fact remains that it is clear that those statements were more than just a first political
reaction phrased in admittedly strong terms. The very fact that he took
immediate action of a punitive nature shows at the very least
that the Minister’s threats deserved to be taken seriously.
In this respect it is not without importance that even after
the Minister had had some more time, and even some days, to rethink his first
reaction, he repeated what he had said earlier.
I leave open the answer to the question whether a
trade union or its leaders can be held responsible if participants in a meeting
spontaneously start shouting certain slogans, or whether they can
only be held responsible if they did not do their best to stop the participants
from expressing themselves in an improper way.
I am, however, prepared to accept that the
participants who publicly started to shout that the Government should step
down transgressed the limits of what can be considered acceptable for police
personnel.
I shall not comment on the Minister’s rather remarkable
statement that the president of the trade union lied
when suggesting that the Government did not have money at its disposal for
increasing policemen’s salaries.
As far as the statement on the banner is
concerned I have only this to say: I am not in a position to express an
opinion on the adequacy or otherwise of the salaries paid to Slovak police
personnel. I would, however, stress that it
is generally acknowledged that policemen should receive an adequate
salary, if only to prevent them from succumbing to the temptation – in
order to meet theirand their families’ minimum daily basic needs – to
supplement their salary with other – illegal – forms of income. Indeed, this Court has handled many cases in which theunderlying facts reflected corruption
on the part of underpaid Government authorities. I can accept that the Trade
Union of the Police wished to convey the following message: if the
Government fails to provide police personnel with an adequate living standard,
and if the police continue to perceive themselves as underpaid, then there is a real danger that ultimately some policemen may be susceptible to offers of
additional or alternative income. I cite as a recent authority the booklet by
the former Council of Europe Commissioner on Human Rights, Thomas Hammerberg,Human Rights in Europe: no grounds for complacency (Council of Europe 2011) and his
comments under the heading Corruption undermines justice
(pp. 228-33).
Trade union banners will seldom
win prizes for the diplomatic and balanced expression ofthe message they
intend to convey. The message has to be short and catchy. A banner tries to
explain as briefly and expressively as possible the perceived problem and
preferred solution thereto, in the hope of influencing people’s views.
Exaggeration or even the use of phrases that may shock, offend and disturb
outsiders are not uncommon in that context.
I agree with the relevant principles as set
out in paragraphs 53‑57 of the judgment.
The duty of loyalty to one’semployer takes
on a special significance for civil servants, including the police. It is
not without significance that Article 11 § 2 expressly states: “This
Article shall not prevent the imposition of lawful restrictions on the exercise
of these rights by members ... of the police...”. However, this trade union was
not subject to any unlawful restrictions relevant to the present case.
Equally, I am prepared to accept that the Slovak Ethical Code
of the Police states that, when expressing their views in public, policemen should act in an impartial and reserved manner so that they do not give rise to
doubts about their impartiality (see paragraph 32).
I have no difficulty agreeing that the
Minister of the Interior was entitled to react with force and determination to
the publicly shouted calls for the resignation of the Government. Even so, the fact that he, as the Minister responsible for the police, repeatedly indicated – even when
the crisis was no longer at its height – that he would dismiss anyone who “acted
contrary to the ethical code of the police again”, that the trade union’s
representatives had “lost credibility”, that he was “not obliged to negotiate
with those representatives”, and that he had actually imposed a sanction on the
president of the trade union for having “misled... the public, those policemen whom he had lured out to the square”‘ in that he had“called into question [the
fact] that the Government had money at their disposal for increasing policemen’s
salaries”, was indeed capable of creating an atmosphere of fear, was indeed intimidating,and did indeed create a situation which could have had a chilling
effect and discouragedtrade union members from pursuing activities within the trade
union. That is reinforced by the fact that the Minister – by imposing a
sanction on the president of the trade union – demonstrated that his reaction
was no empty threat.
By acting to muzzle the trade union’s leadership he undermined
the very essence of the trade union’s rights – a trade union that, let us remember , was itself entirely lawful. That cannot be right.
