Can the exercise of the right to strike depend upon the respect of a prior procedure?

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Date:
30 Nov 2010

<p><span style="font-family: arial,helvetica,sans-serif;"><span style="font-size: 10pt;">In a judgment of 28 October 2010 (<em>Trofimchuk v. Ukraine</em>), the European Court of Human Rights gave a decision in a case in which a worker had been dismissed by her employer (an Ukrainian municipal firm), notably because of her participation in a picket.</span></span></p><span style="font-family: arial,helvetica,sans-serif;"><span style="font-size: 10pt;">

In a judgment of 28 October 2010 (Trofimchuk v. Ukraine), the European Court of Human Rights gave a decision in a case in which a worker had been dismissed by her employer (an Ukrainian municipal firm), notably because of her participation in a picket.

The employer put forward as one argument the fact that the Ukrainian legal procedure (which requires advance notice being provided) hadn't been respected.

The Court first of all declares the worker's participation in a picket constitutes the exercise of the right to peaceful assembly within the meaning of the European Convention on Human Rights and fundamental Freedoms. 

 The Court, however, further notes the Ukrainian law, which guarantees the right to strike, provides a procedure in accordance with which this right can be exercised, and such procedure had not been respected by the worker. The Court considers such procedure a justified interference with the right to peaceful assembly, so there has been no violation of the Convention.

 

The Court's judgment is in line with recent precedents, evolving to obtain a certain balance between rights. A connection can also be established with certain Belgian legal precedents in terms of « blocking » The Court doesn’t give a decision on such blockades’ legality.

This decision repeats the question of the effectiveness of making a distinction between « bad » strikes and « good » strikes respecting a set of « game rules », a distinction that has been rejected by the Supreme Court in a judgment of 1981. It also raises the question whether such rules, often accepted by the social partners, can be imposed on the employees.

The commented judgment must, however, be interpreted with caution insofar as the Court didn’t analyze the national procedure’s compliance with the European requirements.