Freedom of Association and Assembly / Protests, Privacy, Data Protection and Retention
Mena v. ICETEX
Closed Expands Expression
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The European Court of Human Rights unanimously ruled that Latvia had violated the freedom of association by dismissing a trade union representative from her position at a state-owned entity. After the Latvian Air Traffic Controllers Trade Union sent a letter to the state-owned aviation authority raising concerns about employees’ working conditions, the chairperson of the union – who had signed the letter – experienced retribution at her place of employment. The chairperson was eventually dismissed, and she challenged the dismissal and her treatment in the Latvian domestic courts. Three Latvian courts found that her dismissal was lawful. The Court reiterated the protection given to trade union activities and held that the union chairperson’s treatment had been a result of the letter sent in her name. The Court highlighted the harsh repercussions she experienced, and held that the infringement of her freedom of association was not necessary and therefore constituted a violation.
A Latvian woman, Aušra Straume, worked for the state-owned air traffic company (LGS) as an air traffic control officer (ATCO), and was also the chairperson of the Latvian Air Traffic Controllers’ Trade Union. In November 2011, the union sought clarification from the LGS on the conditions for ATCOs’ training: the LGS confirmed that training had to take place outside of regular working hours but that employees would be paid separately for those houses.
On March 2, 2012, the union responded, through a letter to the LGS, signed by Straume, that employees were not receiving any additional payment because the training was not being recorded. The letter stated that the “board did not comply with the requirements set out by the relevant laws, was infringing the legal rights of the LGS employees, and was mismanaging the company’s funds” [para. 11]. The letter highlighted a risk to aeronaviation safety and to LGS’s ability to compete internationally and the lack of overtime payment (and failed negotiations) which, it noted, was leading to employee unhappiness and could result in ATCO resignations.
On March 23, 2012, LGS opened an investigation against Straume and she was put on a paid suspension during that investigation and was prohibited from entering LGS’s premises. It emerged that the company had forced some ATCOs to sign a letter opposing Straume and the initial letter sent by the union to the ministry. However, a larger group of ATCOs wrote various documents addressed to different institutions demonstrating their support for her.
The LGS’s investigative commission recommended that Straume be dismissed. The board initially revoked her salary but after the union refused to approve her dismissal, the LGS reinstated Straume, but ordered her to “stand idle” (“to be present at the workplace every day without carrying out her direct employment duties”) [para. 27]. LGS made employment difficult for Straume and co-workers who supported her: colleagues that maintained contact with her (for example, by giving her a lift or taking a photograph of themselves together) were questioned by the company; the company accused the union and Straume of threatening flight safety with their letter and reported them to the security police; and ordered that Straume undergo an evaluation of her neuropsychological state. The security police claim was rejected and her health results indicated she was healthy. On December 14, 2012, Straume was again refused access to LGS’s premises and on March 11, 2013, her salary was terminated.
Straume instituted civil proceedings against LGS in the Riga City Kurzeme District Court, challenging her suspension and seeking reinstatement. She referred to her “stand idle” instruction, the discrimination she faced because of her role in the union, and interference in the union’s work. LGS defended its actions and maintained that her employment contract should be terminated. The District Court dismissed Straume’s claims. It found that her suspension and the requirement to stand idle were lawful since her “conduct could have caused the employer to be concerned that she might be unpredictable in the performance of her professional duties” [para. 33]. It added that the termination of her contract was reasonable because “it had been impossible to foresee whether she might significantly endanger flight safety” [para. 34]. The Court criticized Straume’s conduct, finding that she had “acted unlawfully by knowingly disseminating untruthful information about her employer”, and that she had shown no loyalty to LGS [para. 36]. The Court noted that because Straume had written to the Minister before raising the union’s concerns with LGS it “indicated that [Straume] had been merely interested in discrediting LGS” [para. 38]. It added that she had “knowingly disseminated to third parties untruthful information about threats to flight safety with the goal of securing socio-economic benefits for herself” and concluded that “[g]iven those circumstances, the employer could justifiably have lost its trust in [Straume]” [para. 38].
Straume appealed to the Riga Regional Court which upheld the District Court’s decision. She then appealed to the Latvian Supreme Court which upheld the lower courts’ decisions.
Straume then filed an application with the European Court of Human Rights, arguing that her rights under Articles 6, 8, 10, 11 and 14 of the European Convention on Human Rights were infringed. Article 6 protects the right to a fair trial; article 8, the right to respect for private and family life; article 10 guarantees freedom of expression and article 11 the freedom of assembly and association; and article 14 prohibits discrimination.
Article 10 states: “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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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 states: “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 European Transport Workers’ Federation, the European Trade Union Confederation, and the International Federation of Air Traffic Controllers’ Associations were admitted as third party intervenors.
The Court delivered a unanimous judgment. The central issue before the Court was whether Straume’s freedom of association had been unjustifiably limited by the treatment she received. The Court examined the case under Article 11, read with Article 10.
Straume argued that she had faced difficulties as a result of her trade union membership and official role, rather than because of her employment as an ATCO. These included the disciplinary hearings; suspension and banning from the work premises and losing her salary; medical checks; having to stand idle; intimidation of her colleagues; and her dismissal. She also submitted that her status as union chairperson had been undermined. Straume submitted that these impacted on her right to freedom of expression under article 10, but that “she was entitled to even greater protection under Article 11, given that she had been acting as the Trade Union’s representative” [para. 64].
The Latvian Government argued that Straume’s employment termination was based on her actions not as a union representative but as an ATCO (as an employee). In addition, the government submitted that the case “raised the complex issue of the freedom of expression of employees regarding conditions of work in a State-owned company that fulfilled an important State function and was critical to its infrastructure” [para. 75]. It submitted that the nature of the work meant that disclosures to third parties had to be carefully monitored.
The Court reiterated the key principles under Article 11 and its protection of trade union activities, describing Article 11 as “present[ing] trade union freedom as a special aspect of freedom of association” [para. 91]. It stressed that a union must be able to freely express the concerns about rights of employees, and that “the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests” [para. 92]. The Court noted that that the “protection against arbitrary, unlawful and unjustified restrictions guaranteed by Article 11 [was] not limited to bans and refusals to authorise the exercise of Convention rights, but also include[d] punitive measures taken after such rights have been exercised, including various disciplinary measures” [para. 93].
The Court found that Latvia did interfere with Straume’s rights under Article 11 as it was “beyond any doubt” that she had signed and sent the letter in her capacity of a trade union official, and so all sanctions, including her losing her job, had to be regarded as a response to her activities in that capacity [para. 95]. It stated that “by sending the Trade Union letter [Straume] acted as its representative and thereby exercised her right to freedom of association” [para. 95].
The Court accepted that the interference was prescribed by law and served a legitimate aim in protecting the rights and freedoms of others – here of the employer.
In examining whether the interference was necessary in democratic society, the Court emphasized that “advocating for the interests of trade union members is the very function of trade union representatives and constitutes a fundamental element of trade union freedom” [para. 102].
The Court referred to its judgments in Palomo Sánchez v. Spain, Szima v. Hungary and Vellutini and Michel v. France on the freedom of expression of trade unions and highlighted four important elements in determining whether there had been a violation of article 11: “the context within which the statements were made (including whether they formed part of a legitimate trade union activity); the nature of the statements (including whether the limits of acceptable criticisms were crossed); the damage suffered by the employer or other persons; and the nature and severity of the sanctions or other repercussions” [para. 103]. The Court assessed the present case in terms of those four elements.
The Court held that the domestic courts did not analyze the context as they assumed Straume had acted in her personal capacity or as an ATCO rather than as a union representative. The Court noted that this meant the domestic courts did not apply the relevant standards of trade unions’ protection. It added that the domestic courts had not assessed whether the facts and opinions mentioned in the letter had a factual basis. The Court reiterated that the sending of the letter constituted “an essential element of the trade union freedom – seeking to persuade the employer to hear what it had to say on behalf of its members” [para. 104].
In determining the truthfulness of Straume’s statements, the Court found that the domestic courts had only “relied on documents and statements attesting, in general terms, that air traffic was safe and that ATCOs were not endangering aeronavigation safety” but “did not verify the statements of facts that had formed the basis for these inferences and did not analyse whether the deficiencies alleged had indeed existed” [para. 107]. Importantly, the Court highlighted that the domestic courts had not determined whether “the ATCO training had indeed taken place on the basis of unregistered overtime work, despite evidence supporting that allegation being presented at a hearing” [para. 107]. The Court held that the letter “did not amount to a gratuitous attack on the LGS board” and that its content “constituted a description of labour-related concerns” and so did not overstep a permitted criticism of employers [para. 108]. The Court accepted that employees owe some degree of loyalty to their employers, but such a duty “cannot […] deprive trade unions and their representatives of the very essence of their right to defend their members’ interests” [para. 108].
In evaluating the damage to LGS as a result of the letter, the Court noted that the letter had been sent only to state officials and had not been disseminated to the wider public. It added that, in fact, had the LGS addressed the letter’s concerns it would have been to its benefit, not detriment.
The Court found that the repercussions for Straume were “exceptionally harsh and clearly incompatible with the exercise of a legitimate trade union activity” [para. 110]. It found that the national courts had disregarded Straume’s status as a trade union official and made her personally liable, resulting in her losing her job and, as the LGS was the only company for civilian ATCOs, she was barred from pursing her career in that sphere. The Court added that these sanctions also had a chilling effect on the trade union as a whole.
Accordingly, the Court held that “the domestic courts cannot be said to have applied standards that were in conformity with the principles deriving from Article 11 of the Convention, read in the light of Article 10, or to have based themselves on an acceptable assessment of the relevant facts” [para. 112]. The Court awarded Straume 25,000 Euros for pecuniary and non-pecuniary damages plus 11,562.28 Euros in respect of costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expanded expression by emphasizing that trade union freedom forms part of freedom of association and stating that attempting to persuade an employer to hear employees’ concerns is an “essential element of the trade union freedom”.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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