FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67336/01 
by Sergey DANILENKOV and Others 
against Russia

The European Court of Human Rights (Fourth Section), sitting on 19 October 2004 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mrs V. Strážnická
 Mr A. Kovler
 Mr S. Pavlovschi
 Mr L. Garlicki
 Mrs E. Fura-Sandström, 
 Ms L. Mijović, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 9 February 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Sergey Nikolayevich Danilenkov and 31 others listed in the schedule, are Russian nationals, who live in the town of Kaliningrad. All applicants are members of the Kaliningrad branch of the Dockers’ Union of Russia (the “DUR”). They are represented before the Court by Mr M. Chesalin, the president of the DUR in the Kaliningrad seaport. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

1.  Background of the application

A branch of the Dockers’ Union of Russia was established in 1995 in the Kaliningrad seaport as the alternative to the traditional Sea Transport Workers’ Union. The branch was officially registered with the Kaliningrad Justice Department on 3 October 1995.

The applicants’ employer, the private company “Sea Commercial Port of Kaliningrad Co. Ltd” (ЗАО «Морской торговый порт Калининград», the “Kaliningrad seaport company”), was established on 30 June 1998 following the re-organisation of the limited company “Sea Commercial Port of Kaliningrad”, and was the latter’s legal successor. On 20 July 1998 the Baltiyskiy District Administration of Kaliningrad officially registered the new legal entity. On 25 April 2002 the private company was re-organised as a public company under the same name (ОАО «МТПК»).

The Government assert that the Kaliningrad seaport was in private ownership, without specifying the actual shareholders. They further allege that the extent of effective control by the State has been limited to supervision of the company’s compliance with applicable laws.

The applicants indicate that on 4 March 1997 the Governor of the Kaliningrad Region issued Resolution no. 183, establishing the Development Fund of the Kaliningrad Region (“the Fund”). Five officials working in the Kaliningrad Regional Administration were appointed to the Fund’s board of management. The Governor himself became the chairman of the board and Mr Karetniy, the first Deputy Governor, was appointed Fund manager.

Between 1997 and 2000 the Fund acquired 20 per cent of the shares of the Kaliningrad seaport company. According to the Fund’s officially published report for the fiscal year 1998, “the acquisition was carried out... to ensure the regional administration’s ability to take part indirectly, as the Fund’s founder, in the management of enterprises of [major] social importance”.

Between 1998 and March 2000 Mr Karetniy was a member of the board of directors of the Kaliningrad seaport company. During that time Mr Karetniy also managed a further 35 per cent of the Kaliningrad seaport company’s shares, through the company “RegionK”, which he controlled.

The applicants infer that their employer was at the material time effectively controlled by the State, both directly (a 20 per cent stake in the Fund), and indirectly (35 per cent of shares were managed by an official from the regional administration).

2.  Alleged discrimination by the seaport management

In May 1996 the DUR took part in collective bargaining. A new collective labour agreement was signed, providing for longer annual leave and better pay conditions. As a result, in the space of two years DUR membership grew from 11 to 275 (as of 14 October 1997). The applicants indicate that the Kaliningrad seaport employed over five hundred dockers at the material time.

On 14 October 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 on 28 October 1997.

The applicants submit that since 28 October 1997 the management of the Kaliningrad seaport has been harassing DUR members to penalise them for the strike and to incite them to relinquish union membership.

(a)  Re-assignment of DUR members to special work gangs

On 28 October 1997 the director-general of the Kaliningrad seaport issued an order reconstituting two special work gangs (nos. 109 and 110), referred to as “dockers’ reserve gangs”, with a staff capacity of up to 40 workers each. These gangs had originally been created for older or health-impaired dockers who could not perform at full capacity. They had contained an insufficient number of personnel (six persons as compared to 14-16 persons in other work gangs) to handle cargoes and, after their merger into one gang (no. 109) in August 1997, they had been assigned to work on day shifts lasting eight hours, while other gangs had worked on alternating day and night shifts of eleven hours. By the order of 28 October 1997 older and health-impaired dockers were transferred to a newly- formed gang no. 117 and the majority of dockers who had taken part in the strike were assigned to the newly-composed “reserve gangs” no. 109 and 110.

According to the applicants, they saw their earning time substantially reduced as a result of their transfer into “reserve gangs” which worked on day shifts only. Throughout late November 1997 the director-general attempted to encourage their co-workers to relinquish DUR membership by immediately transferring those who left the union into non-DUR gangs which had access to cargo-handling work.

On 1 December 1997 the new gang compositions were institutionalised: the director-general ordered gangs to be re-numbered. The applicants were transferred to four gangs which comprised only DUR members who had taken part in the strike (gangs nos. 9, 10, 12 and 13). Gangs nos. 12 and 13 had a similar work schedule to other gangs, while gangs nos. 9 and 10 (formerly nos. 109 and 110) were ordered to work on 11-hour day shifts on two consecutive days followed by two days off.

(b)  Decrease in the earning potential of gangs containing DUR-members

According to the applicants, until December 1997 it had been established practice for the leaders of the gangs on duty to take turns in choosing the work for their gangs. After 1 December 1997 the director-general informally excluded the leaders of the DUR gangs from the traditional arrangement, effectively limiting their options to the least lucrative work. The applicants’ income fell by half to three quarters because they did not receive any cargo-handling work, which was paid per piece. Instead, they carried out only auxiliary work, paid per hour at half the normal rate.

On 21 January 1998 the State Labour Inspector ordered the human resources director of the applicants’ employer to compensate the dockers in the re-organised gangs for lost earnings. On 2 February 1998 the human resources director responded that the re-organisation of gangs was an internal matter for the seaport and that, given that all the dockers received equal pay for equal work, there was no legal basis for granting compensation.

The applicants further allege that their employer deliberately kept the DUR-gangs understaffed (in August 1998 there were three persons in gangs nos. 9 and 10 and six persons in gangs nos. 12 and 13) so as to have a pretext to refuse them access to cargo-handling work.

The first and second applicants complained to the State Labour Inspectorate about the re-assignment of DUR members to special gangs. On 25 August 1998 the head of the State Labour Inspectorate for the Kaliningrad Region issued an order (предписание) to the acting managing director of the Kaliningrad seaport. The Inspectorate established, in particular, that the dockers were assigned to gangs on the basis of their trade-union membership. Such an arrangement was in breach of section 9 § 1 of the Trade-Unions Act, and it prevented several gangs from performing at full capacity, since they were understaffed. The Inspectorate ordered that all changes to the composition of work gangs be reversed in order to restore their staff numbers to a normal level.

On 4 November 1998 the director-general ordered the re-assignment of dockers from the four DUR gangs, each of which had fewer than five workers at the time, to other gangs. On 1 December 1998 the remaining workers in the four DUR gangs were brought together into a new gang (no. 14) and the first applicant was appointed as gang leader.

(c)  Administration of the safety regulations test

Between 15 April and 14 May 1998 the annual test of dockers’ knowledge of work safety regulations was administered. The DUR representative was not allowed to be a member of the test administration committee or even to be present during the test.

The applicants submit that the test conditions were unfair and proved to be prejudicial to DUR members: 79 out of the 89 dockers who failed the test were DUR members, although, as of 1 June 1998, the seaport employed 438 dockers, of whom only 212 were DUR members. According to the Government, only 44 dockers who failed the test had DUR membership. The dockers who failed the test were suspended from cargo-handling work for one week.

At the second test session on 3-5 June, 20 workers again failed the test, 17of whom were DUR members. The applicants point out that a week later two non-DUR members were permitted to work, while DUR members were laid off and not given an opportunity to re-take the test. The applicants submit that the seaport management rewarded those who agreed to relinquish union membership with a pass mark for the test and permission to return to work. One applicant was obliged to hand in his resignation and find employment outside the seaport.

On 25 August 1998 the State Work Safety Inspector ordered the annulment of the results of the safety regulations test on the ground that the composition of the test committee had not been agreed with the DUR. The Inspector ordered that the test be re-administered within one month with the participation of the DUR, and that the dockers be provided with reference materials on safety regulations.

On 29 October 1998 the test was administered for the third time in the presence of a DUR representative and an official of the State Work Safety Inspection. Out of five DUR members who sat the test, four received the highest possible mark and the fifth received the next-to-highest mark.

(d)  Dockers’ redundancies in 1998-1999

On 26 March 1998 the seaport management issued a statement to the effect that 112 dockers would be made redundant.

On 10 August 1998, 33 dockers, formerly staff members, were transferred to “as-needed” contracts. The applicants point out that 27 of the transferred dockers were DUR members (81.8%), while at the material time average DUR penetration in the seaport was 33%. The applicants allege that the transferred dockers were on average better qualified than their retained co-workers.

On 11 November 1998 the director-general ordered that 47 dockers be made redundant. On 20 November 1998 the human resources director served a notice to quit on 35 dockers, of whom 28 were DUR members (according to the applicants). The applicants submit that the actual dismissal did not take place because it required the consent of their trade union, which consent would have never been granted and was not asked for. Instead, on 18 December 1998, 15 dockers in the DUR-gang were notified that as of 18 February 1999 their working time would be reduced from 132 hours to 44 hours a month. Having examined the applicants’ complaint, the Baltiyskiy transport prosecutor found that the arbitrary introduction of a part-time schedule for an extremely small number of workers (15 out of 116 dockers holding the same qualification, out of 365 port dockers in total) without their consent was in breach of the constitutional principle of equality and contrary to Article 25 of the Labour Code. On 10 February 1999 the prosecutor ordered that the port’s director-general remedy the violations.

The first to sixth, ninth, tenth, eleventh and eighteenth applicants also appealed to a court. They requested that the court declare their transfer unlawful, find that they were discriminated against on the ground of their trade-union membership, and award them compensation for lost earnings and non-pecuniary damage.

On 25 January 2000 the Baltiyskiy District Court of Kaliningrad allowed the applicants’ claims in part. The court found that there had been no valid reason for the transfer of a small number of dockers to a part-time schedule and that it was therefore unlawful. The court ordered the seaport company to compensate the plaintiffs for lost earnings and non-pecuniary damage. However, the court refused to find that the plaintiffs had been discriminated against on the ground of their DUR membership, since they failed to prove discriminatory intent on the part of the seaport management.

(e)  Complaint to the ITF and a new collective agreement

On 26 January 1999 the DUR complained to the International Transport Workers’ Federation, the ITF. The ITF called on the Kaliningrad seaport management to end discrimination against the DUR and threatened an international boycott of cargoes originating in the Kaliningrad seaport.

Following international trade-union pressure orchestrated by the ITF, on 22 March 1999 the seaport management and the DUR signed an agreement. The DUR-only gangs were disbanded, DUR members were transferred to other gangs which had full access to cargo-handling work, and a uniform system of bonuses was put in place.

The applicants submit that the conditions of the agreement were complied with until 19 August 1999 when the most active members of the DUR were again transferred to a DUR-only gang.

3.  Proceedings before the domestic authorities

(a)  Attempted criminal proceedings against the seaport’s director-general

In 1998 the DUR requested the Baltiyskiy transport prosecutor’s office to open a criminal investigation into the activities of Mr Kalinichenko, the seaport’s director-general, and charge him under Article 136 of the Criminal Code with an infringement of equality of rights in respect of the applicants.

On 24 September 1998 the Baltiyskiy transport prosecutor’s office refused to open a criminal investigation against Mr Kalinichenko because a preliminary inquiry had failed to establish direct intent on Mr Kalinichenko’s part to discriminate against the applicants.

(b)  Proceedings for a finding of discrimination and compensation

On 12 December 1997 the DUR filed an action on behalf of its members in the Baltiyskiy District Court of Kaliningrad. The DUR asked the court to establish that the seaport management’s policies were discriminatory and to order compensation for lost earnings and non-pecuniary damage sustained by the plaintiffs.

On 18 August 1998 the DUR joined more plaintiffs to the action and also submitted new facts corroborating their discrimination complaint.

On 21 April 1999 the DUR lodged its action on behalf of its members in its final form.

On 28 May 1999 the Baltiyskiy District Court of Kaliningrad dismissed the DUR’s action. The court found the complaints unsubstantiated and held that the seaport management could not be blamed for the uneven distribution of well-paid cargo-handling work. The applicants appealed against the judgment.

On 6 October 1999 the Kaliningrad Regional Court quashed on appeal the judgment of 28 May 1999 and remitted the case for a new examination. The court pointed out that the first- instance court had failed to assess whether the transfer of dockers between gangs could have been motivated by retaliation against the plaintiffs for their participation in the strike and for membership of the DUR. The court also indicated that the first instance court had ignored the plaintiffs’ complaint about a decrease in their wages after the transfer, as compared to their co- workers’ earnings. The court reprimanded the first-instance court for the failure to obtain documents on dockers’ wages from the defendant and for dismissing the plaintiffs’ request to that effect. The court found that the first-instance court’s conclusion on the absence of discrimination had not been lawful or justified because the above-mentioned shortcomings had prevented the first-instance court from assessing the plaintiffs’ arguments in the light of all the relevant information.

On 22 March 2000 the Baltiyskiy District Court of Kaliningrad delivered a new judgment. The court held that the discrimination complaint was unsubstantiated because the applicants had failed to prove the management’s intent to discriminate against them. The court based its conclusion on statements from port managers and stevedores. The managers explained that DUR-only gangs had been formed to mitigate tension in the workforce created by the strikers’ animosity towards their co-workers who had not taken part in the strike. The stevedores denied that they had received any instructions from the management concerning the distribution of cargo-handling work. The court also referred to the decision of the prosecutor’s office of 24 September 1998 and ruled that the seaport could not be held liable for discrimination since no intent to discriminate had been established on the part of its management. The court pointed to the insignificant number of plaintiffs (29) compared to the total number of strikers (213), and held that:

“...the mere request to recognise discrimination on the general ground of membership of a certain public association, brought by only a small group of its members, is an indication of the absence of the alleged discrimination, while the plaintiffs’ situation is the result of their individual actions and characteristics as well as objective factors.”

The court attributed the decrease in the plaintiffs’ wages to their individual failings (such as the failure to pass the work safety test) and an overall reduction in the amount of cargo-handling work in the seaport. However, on a proposal from the defendant, the court awarded the plaintiffs nominal reimbursement of the wage difference for the two months following their transfer to new gangs. The applicants appealed against the judgment.

On 14 August 2000 the Kaliningrad Regional Court ordered discontinuance of the civil proceedings in the part concerning the discrimination complaint. The court decided that the existence of discrimination could only be established in the framework of criminal proceedings in respect of a specific official or another person. Legal entities, such as the seaport, could not be held criminally liable. Consequently, the court concluded that it lacked jurisdiction to examine the discrimination complaint against the seaport. As to the remainder, the court upheld the judgment of 22 March 2000.

(c)  Proceedings for a finding of discrimination

In 2001 the applicants brought a new action against the seaport. They sought a declaration that they had been discriminated against on the ground of their DUR membership and that their rights to equal pay for equal work and access to work had been violated; they also requested that the violations be made good by the seaport and non-pecuniary damage be compensated.

On 18 October 2001 the justice of the peace of the First Circuit of the Baltiyskiy District of Kaliningrad dismissed the application for a declaration in an interim decision (определение). The court followed the reasoning of the judgment of 14 August 2000. It held that it lacked jurisdiction to establish the fact of discrimination because such a fact could only be established in criminal proceedings; however, a legal entity could not be held criminally liable.

The applicants appealed against that decision to the Baltiyskiy District Court of Kaliningrad, which on 6 December 2001 upheld the decision of 18 October 2001.

(d)  Other domestic proceedings concerning various complaints

i.  Deprivation of bonuses and loss of earnings

On 8-15 November 1998 the second, third, fourth, ninth and eighteenth applicants and four of their co-workers took part in a trade-union conference in Denmark. They had applied in advance to the seaport management for permission to attend the conference, but received no reply. By orders of 18 December 1998 and 30 March 1999 the annual bonuses were withdrawn from the conference participants because they had allegedly taken absence without leave. The dockers appealed to a court.

On 1 November 1999 the Baltiyskiy District Court of Kaliningrad found that the seaport administration had been required to grant the plaintiffs leave to attend a trade-union conference as their right to such leave was unconditionally guaranteed by section 25 § 6 of the Trade-Unions Act. The court declared unlawful the orders depriving the plaintiffs of annual bonuses and ordered the seaport to pay compensation. The judgment was not appealed against.

ii.  Lifting of a disciplinary sanction against the eighteenth applicant

On 10 January 1999 a disciplinary reprimand was issued to the eighteenth applicant on account of failure to appear to work on 14 December 1998, a public holiday. The eighteenth applicant appealed against the sanction; he indicated that he had been an elected leader of a trade union and, consequently, the trade-union’s consent was required to impose the sanction.

On 11 January 2000 the Baltiyskiy District Court of Kaliningrad allowed the eighteenth applicant’s complaint. The court annulled the disciplinary sanction on the ground that the seaport administration had failed to apply for the trade union’s consent to impose it, as required by Article 235 of the Labour Code.

iii.  Lifting of a disciplinary sanction for a refusal to perform unskilled work

On 15 January 1999 dockers in the DUR-only gang no. 14 were ordered to clear the port of snow. The dockers refused because the collective bargaining agreement provided that they could only be required to perform unskilled work if such work was auxiliary to the cargo-handling work, which was not the case. They stood by in the port until the end of the shift. On 21 January 1999 the seaport administration ordered that 15 January be counted as absence without leave, imposed a disciplinary reprimand and withdrew their January bonus.

The DUR lodged a court action on behalf of the second to sixth and ninth applicants. It claimed that the disciplinary sanction should be lifted and that the withheld wages and bonuses should be paid.

On 10 October 2000 the Baltiyskiy District Court of Kaliningrad found in favour of the plaintiffs. The court established that the unjustified transfer of qualified dockers to unskilled work violated their labour rights and that they could not be sanctioned for an unauthorised absence as they had stood by waiting for cargo-handling work within the port confines. Besides, the court noted that the plaintiffs were elected leaders of a trade union and that the union’s consent was required to impose a sanction, which had not been obtained. The seaport was ordered to lift the sanction and repay the lost earnings and bonuses, and to bear court fees.

iv.  Unlawful dismissal of the sixteenth applicant

On 14 May 1999 the sixteenth applicant was dismissed on the ground that he had allegedly appeared at work in an inebriated state. The sixteenth applicant appealed to a court against the decision to dismiss him.

On 25 August 1999 the Kaliningrad Regional Court, ruling in the final instance, upheld the applicant’s complaint and ordered the seaport company to re-instate him and pay compensation for lost earnings. The court found, in particular, that there was no evidence showing that the sixteenth applicant had been drunk.

v.  Unlawful disciplinary sanction

By an order of 10 December 1999 the nineteenth, twentieth, twenty-sixth and thirty-second applicants were strongly reprimanded in the course of disciplinary proceedings against them for allegedly leaving their workplace early without authorisation. The DUR, acting on behalf of these applicants, appealed against the disciplinary sanction to a court.

On 29 November 2001 the Baltiyskiy District Court of Kaliningrad allowed the DUR’s action. The court established that the defendant (the seaport) had failed to prove the fact of unauthorised absence. The court quashed the contested order and awarded these applicants compensation for non-pecuniary damage.

vi.  Unlawful imposition of responsibility for an accident

On 20 June 2000 the eighteenth applicant was injured at the workplace. A special commission found that he was responsible for the accident himself, as he had allegedly failed to respect safety regulations. A DUR representative (the twenty-fourth applicant) disagreed with the commission’s conclusion. Nevertheless, the eighteenth applicant was reprimanded in disciplinary proceedings and the June bonus was withdrawn from him and his gang leader (the third applicant). On behalf of the eighteenth and third applicants, the DUR appealed to a court against those decisions.

On 13 April 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad established that the safety compliance commission’s conclusions were not sustainable in the light of the eyewitness testimony. The court quashed the disciplinary sanction in respect of the eighteenth applicant and ordered the seaport to pay the June bonus to him and to his gang leader.

vii.  Unlawful detention in the port

On 20 June 2000, pursuant to an oral instruction by the head of the freight terminal, the third, tenth, twenty-second and twenty-fourth applicants were detained in the port after their shift in order to provide additional explanations concerning a work-related injury (see above). Their work passes were not returned to them until half an hour later.

On 30 August 2000 the Baltiyskiy transport prosecutor’s office asked the seaport director to reprimand the head of the freight terminal for unlawful actions and to avoid their repetition.

viii.  Unlawful demotion of the third applicant

By an order of 19 July 2000 the third applicant was demoted from the position of gang leader to that of a simple docker on the ground that he had allegedly failed to perform his leadership duties to a satisfactory standard. The DUR challenged the order, filing a court action on behalf of the third applicant.

On 7 May 2001 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad allowed the action in part. The court found that the demotion had not been agreed upon by the DUR, of which the third applicant was an elected leader. The court quashed the demotion order and held the seaport liable for lost earnings, compensation for non-pecuniary damage and court fees.

ix.  Restriction of access of trade-union leaders to the port

On 15 May 2001 the seaport’s human resources director ordered that DUR representatives be admitted to the port only to visit the DUR members at their workplaces and during their working hours. Pursuant to that order, the second applicant was not allowed into the port.

On 20 June 2001 the Baltiyskiy transport prosecutor established that the order violated the guarantees of free access by trade-union leaders to workplaces of the union members, set out in Article 231 of the Labour Code and section 11 § 5 of the Trade-Unions Act, and ordered the seaport director to remedy the violation.

On 16 July 2001 the seaport director issued new order no. 252 regulating access by DUR leaders to the port. It provided, inter alia, that access was possible only between 8 a.m. and 8 p.m. on the basis of permits valid for one visit only, obtained in advance and specifying the route and purpose of the visit.

On 26 November 2001 the Baltiyskiy transport prosecutor asked the seaport director to annul order no. 252 as unlawful. The request was refused by the seaport management.

On 23 January 2002 the Baltiyskiy transport prosecutor lodged a civil action on behalf of the second applicant against the seaport requesting that order no. 252 be declared invalid.

On 9 July 2002 the Justice of the Peace of the First Court Circuit of the Baltiyskiy District of Kaliningrad allowed the action and declared that the order restricting the trade-union leaders’ access to the port was unlawful and that in the part concerning the requirement to apply for permits in advance it was also in breach of Article 231 of the Labour Code. The judgment was not appealed against.

4.  Transfer of non-DUR-members to a new company

(a)  Establishment of a new company and transfer of personnel

In August-September 1999 the seaport management founded a subsidiary stevedoring company TPK (ООО «Транспортно-погрузочная компания») which hired 30 new dockers. Between September 1999 and November 2000 TPK’s dockers worked alongside the seaport dockers in mixed gangs.

On 27 November 2000 a new collective labour agreement was signed between the Kaliningrad seaport management and the Sea Transport Workers’ Union. The agreement provided, inter alia, that all cargo-handling work would be assigned to TPK and that the employees of this company would receive a pay rise, complementary medical insurance and a special allowance for sports activities.

During the period December 2000 – January 2001 the seaport management offered lucrative transfers to TPK to most of the dockers, but all the DUR members were allegedly excluded from this procedure. In January 2001 the remaining DUR members were placed in two work gangs. The seaport director general informed the applicants that all stevedoring work would be assigned to TPK, as the seaport’s licence for stevedoring was due to expire on 1 October 2001.

In April 2001 DUR members found their potential earning time cut in half, after they were forbidden from working night shifts. Their income fell to around USD 55 per month, compared to an average income of USD 300 per month for non-DUR workers.

In June 2001 DUR members’ wages fell again to USD 40 per month.

As a result of the conflict, DUR membership has shrunk from 290 persons (in 1999) to only 24 on 6 December 2001.

In February 2002 the remaining DUR members (22 dockers) were made redundant and dismissed. The second applicant was retained: he was a deputy chairman of the DUR steering committee and the DUR’s consent was required for his dismissal. The applicants submit that he was only kept in his post for the sake of appearances, as he had no earning opportunities.

(b)  Civil action concerning the transfer of personnel

On 18 March 2002 the DUR sued the Kaliningrad seaport and TPK, on behalf of the applicants, for reinstatement of the DUR members and compensation for lost earnings and non-pecuniary damage. It also asked the court to find a violation of the applicants’ right to freedom of association and to declare that the employer’s actions had discriminated against the plaintiffs on the ground of their DUR membership.

On 24 May 2002 the Baltiyskiy District Court of Kaliningrad delivered its judgment. The court established that in November 2000 the board of directors of the Kaliningrad seaport had decided to reassign the cargo-handling work to TPK. Between 30 November 2000 and April 2001, 249 dockers had been transferred to TPK and in December 2000 the cargo-handling terminals and equipment had been either sold or leased to the new company. The court inferred therefrom that the employer’s real intention had been to change the structural subordination of the stevedoring unit and that there had been no lawful grounds for making the unit’s employees redundant. It found the applicants’ dismissal unlawful and ordered their reinstatement in TPK and payment of lost earnings and compensation for non-pecuniary damage.

The court also examined the applicants’ allegations of discrimination against them. Relying on statements by several leaders of dockers’ gangs, it established that in November 2000 all dockers had been invited to a meeting at which their transfer to TPK had been discussed. The applicants had not been prevented from attending and they had been offered an opportunity to apply for the transfer. However, they had refused to do anything without advice from the DUR steering committee’s chairman. When asked by the court why they had not applied for the transfer individually, the applicants stated that they had been certain of the employer’s negative response.

The gang leaders also testified that the second applicant (the deputy chairman of the steering committee) had been present at the meeting and argued against the transfer to TPK. The court further inspected leaflets distributed by the DUR and the twenty-fourth applicant’s complaint to a prosecutor’s office. It appeared from the leaflets that the DUR had consistently campaigned against the transfer to TPK and advocated staying in the seaport company, and that the complaint had exposed alleged compulsion to apply for transfer to TPK. The court found that the gathered evidence contradicted the applicants’ allegations that the DUR had not been informed of the transfer or excluded from it. It dismissed the applicants’ complaints about discrimination against them and about a violation of their right to freedom of association as unsubstantiated.

Finally, the court ordered immediate enforcement of the judgment in the part concerning the applicants’ reinstatement.

On 7 August 2002 the Kaliningrad Regional Court upheld, on an appeal by the seaport company, the judgment of 24 May 2002.

(c)  Enforcement of the judgment of 24 May 2002

On 27 May 2002 the seaport director annulled the orders of 20 February 2002 on the applicants’ dismissal and reinstated them. However, they were not transferred to TPK.

On 24 June 2002 the TPK limited company was re-organised as the public company “Sea Commercial Port” (ОАО «Морской торговый порт», the “MTP”). On 11 September 2002 the Kaliningrad Regional Court clarified that the applicants were to be reinstated in MTP, which was the legal successor to TPK.

On 7 August 2002 all of the applicants were again dismissed from the seaport on the ground of absences without valid reasons. However, they submit that the seaport director had already confirmed to them in writing on 10 June that there were no earning opportunities for them in the old company because the stevedoring licence had expired in 2001. The applicants appealed against their dismissal to a court.

On 7 October 2002 the Baltiyskiy District Court of Kaliningrad granted the applicants’ claim. The court found that the defendant had failed to enforce the judgment of 24 May in the part concerning the dockers’ transfer to TPK and therefore their dismissal for unauthorised absence had been unlawful. It ordered payment of lost earnings and compensation for non-pecuniary damage. On 22 January 2003 the Kaliningrad Regional Court upheld the judgment on appeal.

On 30 October 2002 the applicants’ employment in the seaport company was terminated “in connection with their transfer to another company”. On the following day the director of MTP ordered the hiring of the applicants as stevedores of the second category. The applicants submit that the positions offered were below their professional qualification as dockers.

On 30 December 2002, at the applicants’ request, a judge of the Baltiyskiy District Court of Kaliningrad clarified the judgment of 24 May 2002 to the effect that the applicants were to be hired by MTP as dockers. On 26 February 2003 this clarification was confirmed by the Kaliningrad Regional Court.

On 2 April 2003 the MTP director issued new orders whereby the applicants were hired as dockers. However, the applicants submit that they were given a lower base salary compared to other dockers, and a less convenient work schedule. They asked again the district court to clarify on what terms and conditions they were to be transferred to MTP.

On 17 July 2003 a judge of the Baltiyskiy District Court of Kaliningrad refused their request for clarification on the ground that the judgment of 24 May 2002 had already been executed. That refusal was reversed on 17 September 2003 by the Kaliningrad Regional Court which remitted the request for clarification for a fresh examination.

On 15 March 2004 the court issued a new clarification of the judgment of 24 May 2002. It held that the applicants were to be transferred to MTP on terms and conditions, including salaries and work schedules, identical to those that they had enjoyed before the transfer.

On 16 March 2004 the director of MTP issued orders on hiring the applicants and invited them to sign individual labour agreements. It appears that at least some of the applicants refused to sign the agreements because they believed that the terms and conditions should be identical to those of current MTP employees.

B.  Relevant domestic law

Constitution of the Russian Federation

Article 19 of the Russian Constitution provides that the State shall guarantee the equality of rights and freedoms of man and citizen, regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, and also of other circumstances.

Article 30 § 1 guarantees the right to association, including the right to create trade unions for the protection of one’s interests.

The RSFSR Code of Labour Laws (of 25 September 1992)

Article 2 of the Code (in force at the material time) guaranteed, in particular, the right to equal pay for equal work without any discrimination and the right to apply to a court for the protection of one’s labour rights.

Criminal Code of the Russian Federation (of 13 June 1996)

Article 136 prohibits any violation of the equality of human rights and freedoms on the ground, inter alia, of affiliation with a public association, which harms citizens’ rights or lawful interests.

Trade Unions Act (no. 10-FZ of 12 January 1996)

Section 9 prohibits any restriction of the social, labour, political or other rights or freedoms of citizens on the ground of their membership or non-membership of a trade union. It is prohibited to make the hire, promotion or dismissal of an employee conditional on his or her membership or non-membership of a particular trade union.

Section 29 guarantees the judicial protection of the rights of trade unions. A court shall examine cases concerning alleged violations of the rights of trade unions, lodged on an application by the prosecutor, as a civil action or as a complaint by a trade union.

Section 30 provides that state and municipal officials, employers and responsible persons of employers’ associations shall be subject to disciplinary, administrative or criminal liability for violations of the laws on trade unions.

Civil Code of the Russian Federation (of 30 November 1994)

Article 11 provides that courts shall examine claims for the protection of violated or contested civil rights.

Article 12 specifies that the protection of a civil right may take the form, inter alia, of confirmation of a right, restitution of the status quo, an injunction on actions that violate or threaten to violate a right, and compensation for losses and non-pecuniary damage.

COMPLAINTS

The applicants complain under Articles 6, 11 and 14 of the Convention about a violation of their right to freedom of association and freedom from discrimination and about the lack of effective domestic remedies in respect of their discrimination complaint.

THE LAW

A.  Objection by the Government as to the admissibility ratione personae

The Government consider that the present application is to be dismissed as actio popularis because it was lodged by 32 persons “who are not close relatives”. They construe the right of individual petition in Article 34 of the Convention as requiring each applicant to file a separate application. Furthermore, they note that no application was filed on behalf of the DUR as an entity, which they interpret as an admission to the effect that the DUR’s rights have not been impaired.

The applicants submit that each applicant was personally affected by the alleged violations of their rights and each of them signed the application forms filed with this Court. The DUR has supported their claims and provided legal assistance in the domestic and Strasbourg proceedings.

The Court recalls that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he or she alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 17-18, § 33).

The Court notes that Article 34 of the Convention explicitly guarantees for groups of individuals the right to submit applications. Nowhere does the Convention require that such groups be bound by family ties, as the Government suggest. Furthermore, neither the Convention nor the Rules of Court require that each individual in such a group submit a separate application form.

In the instant case the Court is satisfied that each applicant appears to have been affected by the alleged violations of his rights. The Court therefore dismisses the Government’s objection.

B.  Admissibility of the complaints

The applicants complain under Articles 6, 11 and 14 of the Convention about a violation of their right to freedom of association in that the State authorities tolerated their employer’s discriminatory policies and refused to examine their discrimination complaint in the civil proceedings. The Court considers that these complaints fall to be examined under Articles 11, 14 and 13, the latter being lex specialis in respect of the complaints about the absence of an effective remedy in the domestic legal system.

Article 11 provides as follows:

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.”

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Submissions by the parties

1.  Whether the applicants were discriminated against on the ground of their trade-union membership

(a)  Re-assignment of DUR members to special work gangs

The Government do not deny that the applicants were transferred to special DUR-member work gangs after the strike was discontinued on 28 October 1997. It may, nevertheless, be inferred from the sample work orders submitted by the Government that at least half of the workers in those gangs were not DUR members.

The applicants challenge the information contained in the work orders. Referring to the DUR membership list established on 6 October 1997, they indicate that all dockers listed as non-DUR members in the work orders were in fact members of the trade union and had taken part in the strike. Furthermore, they indicate that the fact of establishment of DUR-only gangs had been acknowledged by the director-general himself (Mr Kalinichenko), the former director-general (Mr Lavrenchuk) and a representative of the Kaliningrad seaport company (Mr Palaguin) in their oral and written submissions to the Baltiyskiy District Court, as reflected in the hearing record and in the judgment of 22 March 2000 (see above).

(b)  Alleged decrease in DUR-members’ earnings

The Government submit that the complaint about a sharp decrease in the applicants’ wages was examined by the Kaliningrad State Labour Inspectorate (the date of the examination is not indicated). The Inspectorate found the DUR gangs had been earning approximately the same amounts as non-DUR gangs. No violation of port workers’ labour rights was established. In support of their statements the Government submit five sample work orders for gang no. 113 and four work orders for gangs nos. 110 and 107.

The applicants contend that an unrepresentative sample of work orders provided by the Government is not sufficient to draw inferences. Instead, the applicants have carried out an analysis of all work orders between 1 December 1997 and 28 February 1999, which were officially provided by their employer to the Baltiyskiy District Court at the latter’s request. The results of the analysis are summed up in comparative tables listing the average monthly wages per worker in respect of each gang. It appears from the tables that the average wages in DUR-only gangs nos. 9, 10, 12 and 13 (later re-numbered as gang no. 14) were at all times substantially lower than those in other gangs. The applicants indicate that a decrease in their wages was acknowledged in the order of the State Labour Inspectorate of 21 January 1998 and in the judgment of the Baltiyskiy District Court of 22 March 2000 which ordered that the applicants be compensated for lost earnings.

(c)  Allegedly biased administration of the safety regulations test

The Government submit that there was no indication of discrimination against DUR members in the administration of the safety regulations test. In fact, only 44 dockers out of the 89 who failed the test were DUR members. They were lawfully suspended from work and only readmitted once they had passed the test on the third attempt.

The applicants challenge as factually incorrect the Government’s calculation of the percentage of DUR members who failed the test. They refer to the then current membership lists, which conclusively show that 76 out of the 89 dockers who failed the test were members of the DUR. They also indicate that the defects in the administration of the test were formally acknowledged in the order of the State Work Safety Inspector of 25 August 1998. Lastly, they submit that, once the test was administered fairly, with a DUR representative sitting on the test committee, all the DUR members received the highest marks, even after several months of forced unemployment.

(d)  Allegedly prejudicial decisions on dismissal for redundancy

The Government submit that between 1 April and 31 December 1998 279 employees of the Kaliningrad seaport were made redundant. This number included 55 dockers, of whom 26 were DUR members. All trade-union members were dismissed with their consent and with the approval of their trade-union committee.

The applicants contend that the sixth, seventh, twelfth, thirteenth, fourteenth, fifteenth and seventeenth applicants were obliged to hand in their voluntary resignations because they could no longer stand the employer’s harassment, but that they refused to relinquish their DUR membership. They allege that the seaport management never intended to dismiss all the dockers on whom a notice to quit was served. The management was aware that the trade-union consent required by law would not be forthcoming and it deliberately used a threat of imminent dismissal as a form of harassment.

(e)  Other forms of discrimination against DUR members

The Government submit that in 2001-2002 the State Labour Inspectorate for the Kaliningrad Region examined the DUR president’s complaints to various authorities. No violations of the labour laws were established and a report to that effect was forwarded to the Kaliningrad Region prosecutor’s office.

The applicants disagree. They point to decisions by the Kaliningrad prosecutor’s office and numerous judgments by the Kaliningrad courts (outlined above), establishing that the seaport administration consistently violated the labour rights of DUR members. However, the applicants are dissatisfied with the domestic courts’ failure to consider these violations as a part of a general picture and to make a finding of discrimination against the DUR members.

2.  Whether the existing anti-discrimination provisions were relevant and sufficient

The Government submit that the DUR was registered as a trade union in 1995 and re-registered in 1999; therefore, the domestic authorities have not hindered the establishment or functioning of the DUR. The Trade-Unions Act prohibits any interference by State bodies with the functioning of trade unions (section 5 § 2) and provides that social and labour rights cannot be made conditional on trade-union membership (section 9). The Code of Labour Laws that was in force at the material time contained a number of guarantees: the trade union’s approval was required to dismiss a trade-union member on the ground of redundancy, insufficient professional qualification, frail health, etc. More substantial guarantees were provided for elected leaders of trade unions: without their trade union’s prior consent they could not be transferred to another position, dismissed or subjected to disciplinary sanctions. Lastly, they indicate that the Code prohibited discrimination on account of membership of a public association (Article 16 § 2) and provided for judicial protection of violated rights (Article 2).

The applicants make no comments on this point.

3.  Whether the applicants had an effective remedy for their discrimination complaint

The Government assert that the applicants enjoyed the same protection of their rights and freedoms as all other Russian citizens. In particular, they exerted their right to strike, and they applied to the State Labour Inspectorate and to various prosecutors’ offices. As regards the court action for a finding of discrimination, the Government refer to the decision by the Kaliningrad Regional Court to the effect that the applicants’ complaint concerned, in substance, an alleged violation of the equality of individuals and as such it was to be determined in criminal proceedings under Article 136 of the Criminal Code.

The applicants point out that all the domestic courts to which they applied – the Baltiyskiy District Court of Kaliningrad, the Kaliningrad Regional Court, and the Justice of the Peace of the Baltiyskiy District – consistently refused to examine the merits of their complaint about a violation of their right to freedom of association and discrimination for the reason that it could be determined only in criminal proceedings. The applicants indicate that civil proceedings are fundamentally different from a criminal prosecution in that the latter protects the public interests of society as a whole, while the former proceedings are called upon to afford redress for encroachments on individuals’ private interests. Since, in the present case, it was precisely the applicants’ private rights which were at stake, the domestic courts’ refusal to examine their discrimination complaint in the civil proceedings deprived them of an effective remedy. In any event, the prosecutor’s office also refused the applicants’ request to instigate a criminal investigation in connection with an alleged infringement of the principle of equality and it took no measures to establish whether the applicants’ complaints were true. The applicants contend that the generic anti-discrimination provisions in the Russian legislation to which the Government refer are ineffectual in the absence of a working mechanism for their implementation and application, and therefore they cannot be considered as providing an effective remedy. As regards the Government’s reliance on criminal provisions, they failed to show that anyone had ever been charged, tried or convicted under Article 136 of the Criminal Code.

The Court’s assessment

The Court considers, in the light of the parties’ submissions, that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Michael O'Boyle Nicolas Bratza 
 
Registrar President

 

SCHEDULE

List of the applicants

#

Name

Year of birth

Position in the DUR

1.     

Mr Sergey Nikolayevich Danilenkov

1965

 

2.     

Mr Vladimir Mikhaylovich Sinyakov

1948

deputy chairman of the steering committee (since 15.04.1999)

3.     

Mr Boris Pavlovich Soshnikov

1951

member of the steering committee

4.     

Mr Anatoliy Nikolayevich Kasyanov

1958

 

5.     

Mr Viktor Mikhaylovich Morozov

1947

member of the audit commission

6.     

Mr Anatoliy Yegorovich Troynikov

1947

 

7.     

Mr Dmitriy Yuryevich Korzhachkin

1969

member of the steering committee (until 9.10.1998)

8.     

Mr Yuriy Ivanovich Zharkikh

1970

deputy chairman of the steering committee (until 15.04.1999)

9.     

Mr Anatoliy Ivanovich Kiselev

1949

member of the audit commission

10.     

Mr Yuriy Anatolyevich Bychkov

1969

 

11.     

Mr Aleksandr Igorevich Pushkarev

1961

 

12.     

Mr Gennadiy Ivanovich Silvanovich

1960

 

13.     

Mr Ivan Vasilyevich Oksenchuk

1946

 

14.     

Mr Gennadiy Adamovich Kalchevskiy

1957

 

15.     

Mr Aleksandr Ivanovich Dolgalev

1957

member of the steering committee (until 9.10.1998)

16.     

Mr Vladimir Fedorovich Grabchuk

1956

 

17.     

Mr Aleksandr Fedorovich Tsarev

1954

 

18.     

Mr Aleksandr Yevgenyevich Milinets

1967

member of the steering committee (until 24.01.2000)

19.     

Mr Lukshis Aldevinas Vintso

1955

 

20.     

Mr Aleksandr Fedorovich Verkhoturtsev

1955

member of the steering committee (since 24.01.2000)

21.     

Mr Igor Nikolayevich Vdovchenko

1966

 

22.     

Mr Igor Yuryevich Zverev

1969

 

23.     

Mr Nikolay Grigoryevich Yegorov

1958

member of the steering committee (since 15.04.1999)

24.     

Mr Aleksandr Konstantinovich Lemashov

1955

member of the steering committee (since 15.04.1999)

25.     

Mr Nikolay Nikolayevich Grushevoy

1957

member of the audit commission

26.     

Mr Petr Ivanovich Mironchuk

1959

member of the steering committee (since 15.04.1999)

27.     

Mr Nikolay Yegorovich Yakovenko

1949

member of the steering committee (since 20.08.2000)

28.     

Mr Yuriy Yevgenyevich Malinovskiy

1971

member of the steering committee (since 24.01.2000)

29.     

Mr Oleg Anatolyevich Tolkachev

1964

 

30.     

Mr Aleksandr Viktorovich Solovyev

1956

 

31.     

Mr Aleksandr Mikhaylovich Lenichkin

1936

 

32.     

Mr Vladimir Petrovich Kolyadin

1954

 

DANILENKOV AND OTHERS v. RUSSIA DECISION


DANILENKOV AND OTHERS v. RUSSIA DECISION