chunk_id stringlengths 12 16 | chunk stringlengths 1 797 | source_url stringclasses 200
values | title stringclasses 1
value | chunk_idx int64 0 573 | chunk_start_char int64 0 283k | chunk_end_char int64 57 283k |
|---|---|---|---|---|---|---|
passage_722::19 | Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 May 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. | passage_722 | 19 | 8,816 | 8,999 | |
passage_843::0 | PROCEDURE
1. The case originated in an application (no. 34503/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr ... | passage_843 | 0 | 0 | 554 | |
passage_843::1 | The Turkish Government (“the Government”) were represented by their Co-Agent, Mrs D. Akçay.
3. The applicants complained that, in breach of Article 11 of the Convention, by itself or in conjunction with Article 14, the domestic courts had denied them, firstly, the right to form trade unions and, secondly, the right t... | passage_843 | 1 | 555 | 1,111 | |
passage_843::2 | The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of 23 September 2004, the Chamber declared the application ... | passage_843 | 2 | 1,113 | 1,564 | |
passage_843::3 | This case was assigned to the newly composed Second Section (Rule 52 § 1).
8. On 21 November 2006 the Chamber, composed of Jean-Paul Costa, President, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, Dragoljub Popović, judges, and Sally Dollé, Section Registrar, de... | passage_843 | 3 | 1,565 | 1,906 | |
passage_843::4 | It held, unanimously, that there had been a violation of Article 11 of the Convention in so far as the domestic courts had refused to recognise the legal personality of the trade union Tüm Bel Sen and had considered null and void the collective agreement between that trade union and Gaziantep Municipal Council, and tha... | passage_843 | 4 | 1,907 | 2,429 | |
passage_843::5 | On 21 February 2007 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73.
10. A panel of the Grand Chamber granted that request on 23 May 2007.
11. The composition of the Grand Chamber was determined according to the provisions of Article... | passage_843 | 5 | 2,431 | 2,864 | |
passage_843::6 | A hearing took place in public in the Human Rights Building, Strasbourg, on 16 January 2008 (Rule 59 § 3).
There appeared before the Court:
The Court heard addresses by Mrs S. Karaduman, Mrs V. Baykara and Mrs D. Akçay.
THE FACTS
14. The applicants, Mr Kemal Demir and Mrs Vicdan Baykara, were born in 1951 and 1958... | passage_843 | 6 | 2,866 | 3,235 | |
passage_843::7 | The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its President.
I. THE CIRCUMSTANCES OF THE CASE
15. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under ... | passage_843 | 7 | 3,236 | 3,763 | |
passage_843::8 | On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years, effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council’s employees, such as salaries, allowances and welfare servic... | passage_843 | 8 | 3,765 | 4,093 | |
passage_843::9 | As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular its financial obligations, the second applicant, as President of the trade union, brought civil proceedings against it in the Gaziantep District Court (“the District Court”) on 18 June 1993.
18. In a ... | passage_843 | 9 | 4,095 | 4,555 | |
passage_843::10 | On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court’s judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood.
20. In arriving a... | passage_843 | 10 | 4,557 | 5,165 | |
passage_843::11 | It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take... | passage_843 | 11 | 5,166 | 5,741 | |
passage_843::12 | In a judgment of 28 March 1995, the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international t... | passage_843 | 12 | 5,743 | 6,280 | |
passage_843::13 | Among other things, the District Court indicated, firstly, that the trade union Tüm Bel Sen was a legally established entity which had filed its constitution with the provincial governor’s office a long time ago and which, since then, had carried on its activities without the slightest intervention by the competent aut... | passage_843 | 13 | 6,282 | 6,765 | |
passage_843::14 | As regards the right of civil servants to enter into collective agreements, the court considered that, even if there was an omission in Turkish law on this point, the court to which a dispute was referred had an obligation, under Article 1 of the Civil Code, to make good the omission itself and to adjudicate the case. ... | passage_843 | 14 | 6,767 | 7,249 | |
passage_843::15 | In this context the relevant provisions of the ILO conventions ratified by Turkey had to be applied in the case, even though the specific national laws had not yet been enacted by the legislature. Directly applying the relevant provisions of these international instruments ratified by Turkey, the court considered that ... | passage_843 | 15 | 7,250 | 7,966 | |
passage_843::16 | In the context of the limits imposed by Articles 19 and 20 of the Code of Obligations, namely compliance with statutory provisions, customary law, morals and public order, the parties had been freely entitled to determine the content of this collective agreement. An examination of the text of the collective agreement i... | passage_843 | 16 | 7,967 | 8,561 | |
passage_843::17 | The court awarded Mr Kemal Demir a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question.
26. In a judgment of 6 December 1995, the Court of Cassation (combined civil divisions) quashed the District Court’s judgment of 28 March 1995. It found that certain rights an... | passage_843 | 17 | 8,563 | 8,995 | |
passage_843::18 | In fact, the Constitution, by the indication “the exercise of this right shall be governed by legislation” clearly earmarked the rights and freedoms which, to be used and applied, required the enactment of specific legislation. Absent such legislation, these rights and freedoms, which included the freedom to join a tra... | passage_843 | 18 | 8,996 | 9,716 | |
passage_843::19 | The creation of a legal entity was no more than a legal consequence conferred by the law on an expression of free will by the founders.
28. The Court of Cassation pointed out that the freedom to form associations, trade unions and political parties, even if provided for in the Turkish Constitution, could not be exerc... | passage_843 | 19 | 9,717 | 10,205 | |
passage_843::20 | According to the Court of Cassation, this finding was not at odds with the principles of “the rule of law” and “democracy” mentioned in the Constitution, since supervision of legal entities by the State, in order to ensure public usefulness, was necessary in any democratic legal system.
29. The Court of Cassation fur... | passage_843 | 20 | 10,206 | 10,669 | |
passage_843::21 | It added that the amendments subsequently made to the Turkish Constitution, recognising the right of civil servants to form trade unions and bargain collectively, were not such as to invalidate the finding that Tüm Bel Sen had not acquired legal personality and, as a result, did not have the capacity to take or defend ... | passage_843 | 21 | 10,670 | 11,164 | |
passage_843::22 | Following an audit of the Gaziantep Municipal Council’s accounts by the Audit Court, the members of the trade union Tüm Bel Sen had to reimburse the additional income they had received as a result of the defunct collective agreement. The Audit Court, in a number of decisions that it gave as the court of last resort in ... | passage_843 | 22 | 11,166 | 11,702 | |
passage_843::23 | It further considered that, since the amendment on 23 July 1995 of Article 53 of the Turkish Constitution and the enactment on 25 June 2001 of Law no. 4688 on civil servants’ trade unions, such unions were admittedly entitled to engage in collective bargaining under certain conditions of representation, but were not en... | passage_843 | 23 | 11,703 | 12,225 | |
passage_843::24 | If an agreement was entered into between the employing authority and the trade union concerned, it could only become binding following its approval by the Council of Ministers. The Audit Court, after finding that the collective agreement entered into by the applicant trade union had not fulfilled these conditions, deci... | passage_843 | 24 | 12,226 | 12,921 | |
passage_843::25 | It considered that this provision did not render the collective agreements valid and did not release the accountants in question from the obligation to reimburse the State for any losses sustained by it as a result of payments made in accordance with those agreements.
33. The accountants concerned in turn brought pro... | passage_843 | 25 | 12,922 | 13,479 | |
passage_843::26 | The relevant provisions of the Turkish Constitution read as follows:
Article 51
(at the material time)
“Ordinary contractual employees (işçi) and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights ... | passage_843 | 26 | 13,481 | 14,030 | |
passage_843::27 | If it finds that this information and documentation are not in conformity with the law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions.
Everyone shall be entitled to join or resign from a trade union.
No one shall b... | passage_843 | 27 | 14,031 | 14,698 | |
passage_843::28 | In order to hold an executive post in a trade union or federation of trade unions of ordinary contractual employees, it is necessary to have effectively been employed as such an employee for at least ten years.
The constitution, administration, and functioning of trade unions and federations of trade unions shall not ... | passage_843 | 28 | 14,700 | 15,174 | |
passage_843::29 | 4709 of 3 October 2001)
“Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations, and to join or withdraw from such ent... | passage_843 | 29 | 15,175 | 15,588 | |
passage_843::30 | The right to form a union may only be limited as prescribed by law in the interests of national security or public order, for the prevention of crime, for the protection of public health or morals or for the protection of the rights and freedoms of others.
The formalities, conditions and procedures applicable to the r... | passage_843 | 30 | 15,590 | 16,061 | |
passage_843::31 | The scope of the rights in this sphere of public officials other than those who have the status of ordinary contractual employee, and the exceptions and limitations applicable to them, shall be prescribed by law in a manner appropriate to the nature of the services they provide.
The constitution, administration and fu... | passage_843 | 31 | 16,063 | 16,765 | |
passage_843::32 | Collective agreements shall be entered into in accordance with the statutory procedure.
It shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.”
Article 53
(as amended by Law no. 4121 of 23 July 1995)
“Ordinary contractual employees and employers shal... | passage_843 | 32 | 16,767 | 17,309 | |
passage_843::33 | The trade unions and federations of unions which the public officials referred to in the first paragraph of Article 128 shall be entitled to form, and which do not fall within the scope of the first and second paragraphs of the present Article, nor that of Article 54, shall be entitled to take or defend court proceedin... | passage_843 | 33 | 17,311 | 17,883 | |
passage_843::34 | This text shall be submitted to the Council of Ministers so that legal or administrative arrangements can be made for its implementation. If no such agreement is reached through collective bargaining, a record of the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted... | passage_843 | 34 | 17,884 | 18,562 | |
passage_843::35 | Their constitutionality cannot be challenged in the Constitutional Court.
In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.” (Second sub-paragraph added by Law... | passage_843 | 35 | 18,563 | 19,222 | |
passage_843::36 | The qualifications, appointment, duties and powers, rights and responsibilities, and salaries and allowances of civil servants and other public officials, and other matters related to their status, shall be provided for by law.
The procedure and principles governing the training of senior civil servants shall be speci... | passage_843 | 36 | 19,224 | 19,814 | |
passage_843::37 | The second subsection of that provision stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities.
Section 22 was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972. It was reinstated by section 1 of Law no. 4275 of 12 J... | passage_843 | 37 | 19,815 | 20,371 | |
passage_843::38 | The Civil Servants’ Trade Union Act (Law no. | passage_843 | 38 | 20,373 | 20,417 | |
passage_843::39 | 4688 – which was enacted on 25 June 2001 and entered into force on 12 July 2001) applies, according to section 2, to public officials, other than those who have the status of ordinary contractual employees (işçi), working for government agencies and other public-law entities providing a public service, organisations op... | passage_843 | 39 | 20,418 | 21,050 | |
passage_843::40 | Section 30 of the Act provides as follows:
“The trade union with the greatest number of members in each branch of public administration and the federations to which those unions are affiliated shall have the capacity to bargain collectively. The delegate from the most representative trade union shall chair the delegat... | passage_843 | 40 | 21,052 | 21,711 | |
passage_843::41 | During the collective bargaining, the employer is represented by the Public Employers’ Committee. Civil servants and other public officials are represented by the trade union that is recognised as competent and the federation to which it is affiliated.
The Public Employers’ Committee and the trade unions and federatio... | passage_843 | 41 | 21,713 | 22,378 | |
passage_843::42 | If agreement is reached within that time, the parties concerned sign a collective agreement which is sent to the Council of Ministers to enable the legal and administrative steps required for its implementation to be taken. The Council of Ministers takes the appropriate measures within a period of three months and pres... | passage_843 | 42 | 22,379 | 23,006 | |
passage_843::43 | If the parties approve the decision of the Arbitral Board, an agreement is signed and sent to the Council of Ministers. If there is still no agreement, the parties sign a record indicating the points on which they have agreed and disagreed. This record is also sent to the Council of Ministers (section 35 of Law no. 468... | passage_843 | 43 | 23,007 | 23,461 | |
passage_843::44 | 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Turkey on 12 July 1993) provides as follows:
“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisation... | passage_843 | 44 | 23,462 | 23,930 | |
passage_843::45 | 87, adopted in 2005, the Committee of Experts on the Application of Conventions and Recommendations stated as follows:
“The Committee underlines that Article 2 of the Convention [No. 87] provides that workers without distinction whatsoever should have the right to form and join organisations of their own choosing and ... | passage_843 | 45 | 23,931 | 24,358 | |
passage_843::46 | The ILO Committee on Freedom of Association declared as follows concerning municipal civil servants (see Digest of Decisions 1996, paragraph 217):
“Local public service employees should be able effectively to establish organisations of their own choosing, and these organisations should enjoy the full right to further ... | passage_843 | 46 | 24,360 | 25,005 | |
passage_843::47 | No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and free... | passage_843 | 47 | 25,007 | 25,611 | |
passage_843::48 | The States Parties to the present Covenant undertake to ensure:
(a) the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. | passage_843 | 48 | 25,613 | 25,893 | |
passage_843::49 | No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
...
(c) the right of trade unions to function freely subject... | passage_843 | 49 | 25,894 | 26,438 | |
passage_843::50 | This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
...”
(b) Collective bargaining law and civil servants
42. The relevant Articles of ILO Convention No. | passage_843 | 50 | 26,440 | 26,734 | |
passage_843::51 | 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted in 1949 and ratified by Turkey on 3 January 1952) read as follows:
Article 4
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and uti... | passage_843 | 51 | 26,735 | 27,296 | |
passage_843::52 | 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. | passage_843 | 52 | 27,298 | 27,468 | |
passage_843::53 | In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police e... | passage_843 | 53 | 27,470 | 28,145 | |
passage_843::54 | 98 only those officials who are directly employed in the administration of the State. With that exception, all other persons employed by the government, by public enterprises or by autonomous public institutions should benefit, according to the Committee, from the guarantees provided for in Convention No. 98 in the sam... | passage_843 | 54 | 28,146 | 28,755 | |
passage_843::55 | 44. The relevant provisions of ILO Convention No. 151 (adopted in 1978 and ratified by Turkey on 12 July 1993) concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service read as follows:
Article 1
“1. This Convention applies to all persons employed b... | passage_843 | 55 | 28,757 | 29,218 | |
passage_843::56 | The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations.
3. | passage_843 | 56 | 29,220 | 29,517 | |
passage_843::57 | 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.”
Article 7
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation ... | passage_843 | 57 | 29,519 | 30,183 | |
passage_843::58 | 151, noted “the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948, [and] the Right to Organise and Collective Bargaining Convention, 1949” and took into account:
“... the particular problems arising as to the scope of, and definitions for the purpose of, any international ins... | passage_843 | 58 | 30,184 | 30,783 | |
passage_843::59 | public servants, and the observations of the supervisory bodies of the ILO on a number of occasions that some governments have applied these provisions in a manner which excludes large groups of public employees from coverage by that Convention.”
2. | passage_843 | 59 | 30,783 | 31,034 | |
passage_843::60 | European instruments
(a) Right to organise and civil servants
45. Article 5 of the European Social Charter (revised), not yet ratified by Turkey, provides as follows:
Article 5 – The right to organise
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or internation... | passage_843 | 60 | 31,036 | 31,602 | |
passage_843::61 | The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally... | passage_843 | 61 | 31,603 | 32,219 | |
passage_843::62 | However, the exercise of these rights may be regulated by law or through collective agreement in order to make it compatible with their public duties. Their rights, particularly political and trade union rights, should only be lawfully restricted in so far as it is necessary for the proper exercise of their public func... | passage_843 | 62 | 32,220 | 32,552 | |
passage_843::63 | Article 12 § 1 of the European Union’s Charter of Fundamental Rights provides as follows:
“Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions ... | passage_843 | 63 | 32,554 | 33,068 | |
passage_843::64 | This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises, whether national or municipal. Civil servants, whether they work for central government or a local authority, are generally entitled to join the trade union of their choosi... | passage_843 | 64 | 33,069 | 33,783 | |
passage_843::65 | (b) The right to bargain collectively and civil servants
49. | passage_843 | 65 | 33,785 | 33,847 | |
passage_843::66 | 6 of the European Social Charter (revised), not yet ratified by Turkey, contains the following provision concerning the right to bargain collectively:
“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:
1. to promote joint consultation between workers and emp... | passage_843 | 66 | 33,856 | 34,565 | |
passage_843::67 | settlement of labour disputes;
and recognise:
4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”
50. | passage_843 | 67 | 34,565 | 34,839 | |
passage_843::68 | According to the meaning attributed by the Charter’s Committee of Independent Experts (now the European Committee of Social Rights) to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in orde... | passage_843 | 68 | 34,841 | 35,382 | |
passage_843::69 | Article 28 of the European Union’s Charter of Fundamental Rights provides as follows:
Right of collective bargaining and action
“Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements a... | passage_843 | 69 | 35,384 | 35,852 | |
passage_843::70 | As to the practice of European States, it can be observed that, in the vast majority of them, the right for public servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas (disciplinary procedures, pensions, medical insurance, wages of senio... | passage_843 | 70 | 35,854 | 36,378 | |
passage_843::71 | The right of public servants working for local authorities and not holding State powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the vast majority of Contracting States. The remaining exceptions can be justified by particular circumstances.
THE ... | passage_843 | 71 | 36,379 | 36,752 | |
passage_843::72 | The Government raised two objections to admissibility before the Grand Chamber: one to the effect that it was impossible to rely against them on international instruments other than the Convention, particularly instruments that Turkey had not ratified; and the other to the effect that Article 11 of the Convention was n... | passage_843 | 72 | 36,754 | 37,398 | |
passage_843::73 | In particular, considering that the Chamber had attached great importance to the European Social Charter (Articles 5 and 6 of which had not been ratified by Turkey) and to the case-law of its supervisory organ, they requested the Grand Chamber to declare the application inadmissible as being incompatible ratione materi... | passage_843 | 73 | 37,399 | 37,869 | |
passage_843::74 | As to the second objection, the Government, relying for the most part on the restriction provided for in the last sentence of Article 11 of the Convention in respect of the applicability of this provision to “members ... of the administration of the State”, argued that Turkish civil servants, including municipal civil ... | passage_843 | 74 | 37,871 | 38,498 | |
passage_843::75 | The applicants disputed the objections submitted by the Government.
57. The Court observes that the Government’s objection to the Court’s consideration of the European Social Charter cannot be regarded as a preliminary objection. Even supposing that the Government’s objection was well-founded, an application does not... | passage_843 | 75 | 38,500 | 39,116 | |
passage_843::76 | As to the objection concerning the scope of the Convention ratione materiae, the Court first observes that the Government are not estopped from raising it since they submitted before the Chamber, prior to the examination of admissibility, an essentially similar argument. | passage_843 | 76 | 39,118 | 39,389 | |
passage_843::77 | That being said, the Court notes that, even if there had been estoppel, it could not have avoided examining this issue, which goes to its jurisdiction, the extent of which is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case (see, mutatis mutandis... | passage_843 | 77 | 39,390 | 39,774 | |
passage_843::78 | This objection by the Government nevertheless requires the Court to examine the notion of “members ... of the administration of the State”, which appears in the last sentence of Article 11. The Court therefore finds it appropriate to join it to the merits.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
59. T... | passage_843 | 78 | 39,776 | 40,326 | |
passage_843::79 | 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... | passage_843 | 79 | 40,328 | 40,863 | |
passage_843::80 | 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.”
A. Interpretation of the Convention in the light of other international instruments
60. The Court decided above to examine at the... | passage_843 | 80 | 40,864 | 41,421 | |
passage_843::81 | As it relates more to the methodology to be adopted in an examination of the merits of the complaints submitted under Article 11 of the Convention, the Court considers it necessary to dispose of this submission before turning to any other question.
1. The parties’ submissions
(a) The Government
61. The Government... | passage_843 | 81 | 41,422 | 42,033 | |
passage_843::82 | While the Government accepted that the Court had always taken into account, where necessary, “any relevant rules of international law applicable in the relations between the parties” (see AlAdsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001XI), they considered that this approach was only legitimate if it ... | passage_843 | 82 | 42,034 | 42,588 | |
passage_843::83 | 62. Turkey was not a party to Article 5 (the right to organise) or Article 6 (the right to bargain collectively) of the European Social Charter, which it ratified in 1989. An interpretation that rendered these provisions binding on an indirect basis was even more problematic where, as in the present case, the absence ... | passage_843 | 83 | 42,590 | 43,140 | |
passage_843::84 | The applicants criticised the manner in which the Government had raised the question concerning interpretation of the Convention. They pointed out that the Chamber had not applied the above-mentioned provisions of the European Social Charter in the present case, but that it had taken into account, in its interpretation... | passage_843 | 84 | 43,142 | 43,774 | |
passage_843::85 | It referred, as a supplementary argument, to the opinion of the European Social Charter’s Committee of Independent Experts when pointing out the organic link between freedom of association and freedom to bargain collectively (see Demir and Baykara v. Turkey, no. 34503/97, § 35, 21 November 2006). | passage_843 | 85 | 43,775 | 44,072 | |
passage_843::86 | In its judgment, the Chamber used references to conventions of the International Labour Organisation (ILO) in assessing whether the impugned measure was necessary in a democratic society, and, in particular, whether the trade union Tüm Bel Sen had been acting in good faith when it chose collective bargaining as a means... | passage_843 | 86 | 44,073 | 44,572 | |
passage_843::87 | In order to determine the meaning of the terms and phrases used in the Convention, the Court is guided mainly by the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention (see, for example, Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Johnston and Others v. Ireland... | passage_843 | 87 | 44,574 | 44,941 | |
passage_843::88 | 112; Lithgow and Others v. the United Kingdom, 8 July 1986, §§ 114 and 117, Series A no. 102; and Witold Litwa v. Poland, no. 26629/95, §§ 57-59, ECHR 2000III). | passage_843 | 88 | 44,942 | 45,102 | |
passage_843::89 | In accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Golder, cited above, § 29; Johnston and Others, cited above, § 51; and Article 31 § 1 of ... | passage_843 | 89 | 45,103 | 45,446 | |
passage_843::90 | Recourse may also be had to supplementary means of interpretation, either to confirm a meaning determined in accordance with the above steps, or to establish the meaning where it would otherwise be ambiguous, obscure, or manifestly absurd or unreasonable (see Article 32 of the Vienna Convention, and Saadi v. the United... | passage_843 | 90 | 45,447 | 45,819 | |
passage_843::91 | Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory. The Convention must also be read as a whole, and interpreted in such a way as to promote internal cons... | passage_843 | 91 | 45,821 | 46,329 | |
passage_843::92 | In addition, the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the ... | passage_843 | 92 | 46,331 | 46,808 | |
passage_843::93 | 45036/98, § 150, ECHR 2005VI; and Article 31 § 3 (c) of the Vienna Convention).
68. The Court further observes that it has always referred to the “living” nature of the Convention, which must be interpreted in the light of present-day conditions, and that it has taken account of evolving norms of national and interna... | passage_843 | 93 | 46,809 | 47,255 | |
passage_843::94 | 161; Vo v. France [GC], no. 53924/00, § 82, ECHR 2004VIII; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005I).
(b) Diversity of international texts and instruments used for the interpretation of the Convention
69. | passage_843 | 94 | 47,256 | 47,511 | |
passage_843::95 | The precise obligations that the substantive provisions of the Convention impose on Contracting States may be interpreted, firstly, in the light of relevant international treaties that are applicable in the particular sphere (thus, for example, the Court has interpreted Article 8 of the Convention in the light of the U... | passage_843 | 95 | 47,513 | 48,016 | |
passage_843::96 | 78028/01 and 78030/01, §§ 139 and 144, ECHR 2004V, and Emonet and Others v. Switzerland, no. 39051/03, §§ 65-66, 13 December 2007).
70. | passage_843 | 96 | 48,017 | 48,153 | |
passage_843::97 | In another case where reference was made to international treaties other than the Convention, the Court, in order to establish the State’s positive obligation concerning “the prohibition on domestic slavery” took into account the provisions of universal international conventions (the ILO Forced Labour Convention; the U... | passage_843 | 97 | 48,155 | 48,736 | |
passage_843::98 | After referring to the relevant provisions of these international instruments, the Court considered that limiting the question of compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and... | passage_843 | 98 | 48,737 | 49,118 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.