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passage_843::99 | Moreover, as the Court indicated in the Golder case (cited above, § 35), the relevant rules of international law applicable in the relations between the parties also include “general principles of law recognised by civilized nations” (see Article 38 § 1 (c) of the Statute of the International Court of Justice). | passage_843 | 99 | 49,120 | 49,432 | |
passage_843::100 | The Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that “the Commission and the Court [would] necessarily [have to] apply such principles” in the execution of their duties and thus considered it to be “unnecessary” to insert a specific clause to this effect in the Conventio... | passage_843 | 100 | 49,433 | 49,876 | |
passage_843::101 | In the Soering judgment (cited above), the Court took into consideration the principles laid down by texts of universal scope in developing its case-law concerning Article 3 of the Convention in respect of extradition to third countries. Firstly, it considered, with reference to the 1966 International Covenant on Civil... | passage_843 | 101 | 49,878 | 50,392 | |
passage_843::102 | Secondly, it considered that the fact that the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibited the extradition of a person to another State where he would be in danger of being subjected to torture did not mean that an essentially similar obligation was... | passage_843 | 102 | 50,393 | 50,801 | |
passage_843::103 | , the Court found in its Al-Adsani judgment, with reference to universal instruments (Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, Articles 2 and 4 of the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Tr... | passage_843 | 103 | 50,814 | 51,425 | |
passage_843::104 | Stipendiary Magistrate and Others, ex parte Pinochet (No. | passage_843 | 104 | 51,425 | 51,483 | |
passage_843::105 | 3)), that the prohibition of torture had attained the status of a peremptory norm of international law, or jus cogens, which it incorporated into its case-law in this sphere (see Al-Adsani, cited above, § 60).
74. In a number of judgments the Court has used, for the purpose of interpreting the Convention, intrinsical... | passage_843 | 105 | 51,484 | 52,028 | |
passage_843::106 | 48939/99, §§ 59, 71, 90 and 93, ECHR 2004XII).
75. These methods of interpretation have also led the Court to support its reasoning by reference to norms emanating from other Council of Europe organs, even though those organs have no function of representing States Parties to the Convention, whether supervisory mecha... | passage_843 | 106 | 52,029 | 52,372 | |
passage_843::107 | In order to interpret the exact scope of the rights and freedoms guaranteed by the Convention, the Court has, for example, made use of the work of the European Commission for Democracy through Law (“the Venice Commission”) (see, among other authorities, Russian Conservative Party of Entrepreneurs and Others v. Russia, ... | passage_843 | 107 | 52,373 | 52,821 | |
passage_843::108 | 71251/01, §§ 45-52, ECHR 2007II; and Çiloğlu and Others v. Turkey, no. 73333/01, § 17, 6 March 2007), of that of the European Commission against Racism and Intolerance (see, for example, Bekos and Koutropoulos v. Greece, no. 15250/02, §§ 3336, ECHR 2005XIII; Ivanova v. Bulgaria, no. | passage_843 | 108 | 52,822 | 53,105 | |
passage_843::109 | 52435/99, §§ 65-66, 12 April 2007; Cobzaru v. Romania, no. 48254/99, §§ 49-50, 26 July 2007; and D.H. and Others v. the Czech Republic [GC], no. | passage_843 | 109 | 53,106 | 53,250 | |
passage_843::110 | 57325/00, §§ 59-65, 184, 192, 200 and 205, ECHR 2007IV) and of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see, for example, Aerts v. Belgium, 30 July 1998, § 42, Reports of Judgments and Decisions 1998V; Slimani v. France, no. | passage_843 | 110 | 53,251 | 53,552 | |
passage_843::111 | 57671/00, §§ 22 et seq., ECHR 2004IX; Nazarenko v. Ukraine, no. 39483/98, §§ 94-102, 29 April 2003; Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002VI; and Kadiķis v. Latvia (no. 2), no. | passage_843 | 111 | 53,553 | 53,743 | |
passage_843::112 | 62393/00, § 52, 4 May 2006).
76. The Court recently confirmed, in its Saadi judgment (cited above, § 63), that when it considers the object and purpose of the Convention provisions, it also takes into account the international law background to the legal question before it. | passage_843 | 112 | 53,744 | 54,020 | |
passage_843::113 | Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of i... | passage_843 | 113 | 54,021 | 54,431 | |
passage_843::114 | By way of example, in finding that the right to organise had a negative aspect which excluded closed-shop agreements, the Court considered, largely on the basis of the European Social Charter and the case-law of its supervisory organs, together with other European or universal instruments, that there was a growing meas... | passage_843 | 114 | 54,433 | 54,936 | |
passage_843::115 | 52562/99 and 52620/99, §§ 72-75, ECHR 2006I).
78. The Court observes in this connection that in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State.
79. | passage_843 | 115 | 54,937 | 55,241 | |
passage_843::116 | Thus, in the Marckx v. Belgium case, concerning the legal status of children born out of wedlock, the Court based its interpretation on two international conventions of 1962 and 1975 that Belgium, like other States Parties to the Convention, had not yet ratified at the time (see Marckx v. Belgium, 13 June 1979, §§ 20 a... | passage_843 | 116 | 55,243 | 55,587 | |
passage_843::117 | The Court considered that the small number of ratifications of these instruments could not be relied on in opposition to the continuing evolution of the domestic law of the great majority of the member States, together with the relevant international instruments, towards full juridical recognition of the maxim “mater s... | passage_843 | 117 | 55,588 | 56,081 | |
passage_843::118 | 63235/00, ECHR 2007II) and Sørensen and Rasmussen (cited above), the Court was guided by the European Union’s Charter of Fundamental Rights, even though this instrument was not binding. Furthermore, in the cases of McElhinney v. Ireland ([GC], no. 31253/96, ECHR 2001XI), Al-Adsani (cited above) and Fogarty v. the Unite... | passage_843 | 118 | 56,082 | 56,422 | |
passage_843::119 | 37112/97, ECHR 2001XI), the Court took note of the European Convention on State Immunity, which had only been ratified at the time by eight member States.
81. In addition, in its Glass v. the United Kingdom judgment, the Court took account, in interpreting Article 8 of the Convention, of the standards enshrined in th... | passage_843 | 119 | 56,423 | 56,943 | |
passage_843::120 | 61827/00, § 75, ECHR 2004II).
82. In order to determine the criteria for State responsibility under Article 2 of the Convention in respect of dangerous activities, the Court, in the Öneryıldız judgment, referred among other texts to the Convention on Civil Liability for Damage resulting from Activities Dangerous to t... | passage_843 | 120 | 56,944 | 57,401 | |
passage_843::121 | 172 – Strasbourg, 4 November 1998). The majority of member States, including Turkey, had neither signed nor ratified these two conventions (see Öneryıldız, cited above, § 59).
83. | passage_843 | 121 | 57,402 | 57,582 | |
passage_843::122 | In the Taşkın and Others v. Turkey case, the Court built on its caselaw concerning Article 8 of the Convention in matters of environmental protection (an aspect regarded as forming part of the individual’s private life) largely on the basis of principles enshrined in the United Nations Economic Commission for Europe’s ... | passage_843 | 122 | 57,584 | 58,085 | |
passage_843::123 | 49517/99, §§ 99 and 119, 4 December 2003). Turkey had not signed the Aarhus Convention.
84. The Court notes that the Government further invoked the absence of political support on the part of member States, in the context of the work of the Steering Committee for Human Rights, for the creation of an additional protoc... | passage_843 | 123 | 58,086 | 58,666 | |
passage_843::124 | The Court regards this as an argument in support of the existence of a consensus among Contracting States to promote economic and social rights. It is not precluded from taking this general wish of Contracting States into consideration when interpreting the provisions of the Convention.
4. Conclusion
85. The Court,... | passage_843 | 124 | 58,667 | 59,276 | |
passage_843::125 | The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.
86. In this context, it is not necessary for the respondent State to have ratified ... | passage_843 | 125 | 59,277 | 59,717 | |
passage_843::126 | It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern socie... | passage_843 | 126 | 59,718 | 60,190 | |
passage_843::127 | The Chamber considered that it had not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants by Turkish law, as it was applied at the material time, met a “pressing social need”. It found that the mere fact that the “legislation [had] not provide[d] for such a possibility”... | passage_843 | 127 | 60,192 | 60,674 | |
passage_843::128 | 28602/95, §§ 36-39, ECHR 2006II), the Chamber considered that, absent any concrete evidence to show that the activities of the trade union Tüm Bel Sen represented a threat to society or to the State, the respondent State, in refusing to recognise the legal personality of the applicants’ union, had failed to comply with... | passage_843 | 128 | 60,675 | 61,182 | |
passage_843::129 | The parties’ submissions
(a) The Government
89. Before the Grand Chamber, the Government raised a plea of incompatibility ratione materiae with the provisions of the Convention: Article 11 of the Convention not being applicable to “members ... of the administration of the State”, it could not be applied to the appl... | passage_843 | 129 | 61,184 | 61,797 | |
passage_843::130 | The situation of municipal civil servants was no different from that of other civil servants, as local-government bodies were clearly governmental organisations performing public duties.
91. The Government were of the opinion that it was impossible to render ineffective, by means of interpretation or use of case-law,... | passage_843 | 130 | 61,798 | 62,383 | |
passage_843::131 | The Government further argued before the Grand Chamber that the judgment of the Court of Cassation of 6 December 1995 had had no repercussions on the intensive union activities of the trade union Tüm Bel Sen, because it had subsequently displayed an undeniable organisational efficiency and had been able to enter into h... | passage_843 | 131 | 62,385 | 63,064 | |
passage_843::132 | They observed that the prohibition as applied in the present case did not take into account the fact that certain civil servants performed exactly the same work as employees in the private sector.
94. As to the effects that the Court of Cassation judgment of 6 December 1995 had had on the activities of the trade unio... | passage_843 | 132 | 63,065 | 63,621 | |
passage_843::133 | Even though, more recently, such proceedings had been abandoned, the municipal authorities, fearing fresh proceedings, had ceased to engage in collective bargaining with trade unions. The activities of the trade union Tüm Bel Sen had thus been considerably limited.
95. The applicants also claimed, in this connection,... | passage_843 | 133 | 63,622 | 64,270 | |
passage_843::134 | This development, which in itself constituted interference with the trade union’s activities, had also prevented the union from persuading other municipal authorities to sign new collective agreements.
3. The Court’s assessment
(a) Can the applicants, as municipal civil servants, be afforded the guarantees of Artic... | passage_843 | 134 | 64,271 | 64,888 | |
passage_843::135 | It is true that Article 11 § 2 in fine clearly indicates that the State is bound to respect the freedom of association of its employees, subject to the possible imposition of lawful restrictions on the exercise by members of its armed forces, police or administration of the rights protected in that Article (see Swedish... | passage_843 | 135 | 64,890 | 65,289 | |
passage_843::136 | In this connection, the Court considers that the restrictions imposed on the three groups mentioned in Article 11 are to be construed strictly and should therefore be confined to the “exercise” of the rights in question. These restrictions must not impair the very essence of the right to organise. | passage_843 | 136 | 65,291 | 65,589 | |
passage_843::137 | On this point the Court does not share the view of the Commission that the term “lawful” in the second sentence of Article 11 § 2 requires no more than that the restriction in question should have a basis in national law, and not be arbitrary and that it does not entail any requirement of proportionality (see Council o... | passage_843 | 137 | 65,590 | 66,050 | |
passage_843::138 | Moreover, in the Court’s view, it is incumbent on the State concerned to show the legitimacy of any restrictions to such persons’ right to organise. The Court further considers that municipal civil servants, who are not engaged in the administration of the State as such, cannot in principle be treated as “members of th... | passage_843 | 138 | 66,051 | 66,599 | |
passage_843::139 | The Court observes that these considerations find support in the majority of the relevant international instruments and in the practice of European States.
99. | passage_843 | 139 | 66,601 | 66,761 | |
passage_843::140 | While Article 8 § 2 of the International Covenant on Economic, Social and Cultural Rights, which concerns the same subject matter, includes members of the administration of the State among the categories of persons who may be subject to restrictions, Article 22 of the International Covenant on Civil and Political Right... | passage_843 | 140 | 66,763 | 67,384 | |
passage_843::141 | The Court points out that the principal instrument guaranteeing, internationally, the right for public officials to form trade unions is ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, Article 2 of which provides that all workers, without distinction whatsoever, have the right t... | passage_843 | 141 | 67,386 | 68,000 | |
passage_843::142 | This Committee, in its Individual Observation to the Turkish government concerning ILO Convention No. 87, considered that the only admissible exception to the right to organise as contemplated by that instrument concerned the armed forces and the police (see paragraph 38 above).
102. The Court further notes that the ... | passage_843 | 142 | 68,001 | 68,714 | |
passage_843::143 | 103. The instruments emanating from European organisations also show that the principle whereby civil servants enjoy the fundamental right of association has been very widely accepted by the member States. For example, Article 5 of the European Social Charter guarantees the freedom of workers and employers to form loc... | passage_843 | 143 | 68,716 | 69,423 | |
passage_843::144 | The right of association of civil servants has also been recognised by the Committee of Ministers of the Council of Europe in its Recommendation No. R (2000) 6 on the status of public officials in Europe, Principle 8 of which declares that public officials should, in principle, enjoy the same rights as all citizens, an... | passage_843 | 144 | 69,425 | 69,924 | |
passage_843::145 | Another European instrument, the European Union’s Charter of Fundamental Rights, has adopted an open approach to the right to organise, declaring, in its Article 12 § 1, among other things, that “everyone” has the right to form and to join trade unions for the protection of his or her interests (see paragraph 47 above)... | passage_843 | 145 | 69,926 | 70,425 | |
passage_843::146 | 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 | 146 | 70,426 | 71,018 | |
passage_843::147 | In the majority of member States, the few restrictions that can be found are limited to judicial offices, the police and the fire services, with the most stringent restrictions, culminating in the prohibition of union membership, being reserved for members of the armed forces.
107. The Court concludes from this that ... | passage_843 | 147 | 71,019 | 71,582 | |
passage_843::148 | In the present case, however, the Government have failed to show how the nature of the duties performed by the applicants, as municipal civil servants, requires them to be regarded as “members of the administration of the State” subject to such restrictions.
108. Accordingly, the applicants may legitimately rely on A... | passage_843 | 148 | 71,583 | 72,047 | |
passage_843::149 | The Court reiterates that Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, 27 October 1975, § 38, Series A no. 19, and Swedish Engine Drivers’ Union, cited above, § 39). The Convention makes no distinction between the... | passage_843 | 149 | 72,049 | 72,507 | |
passage_843::150 | On the contrary, § 2 in fine of this provision clearly indicates that the State is bound to respect freedom of assembly and association, subject to the possible imposition of “lawful restrictions” in the case of members of its armed forces, police or administration (see Tüm Haber Sen and Çınar, cited above, § 29). Arti... | passage_843 | 150 | 72,508 | 73,037 | |
passage_843::151 | The Court further reiterates that, although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights. | passage_843 | 151 | 73,039 | 73,351 | |
passage_843::152 | In the specific context of the present case, the responsibility of Turkey would be engaged if the facts complained of by the applicants – that is to say, principally, the non-recognition of their trade union by the State at the material time – resulted from a failure on its part to secure to the applicants under domest... | passage_843 | 152 | 73,352 | 73,813 | |
passage_843::153 | 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V, and Gustafsson v. Sweden, 25 April 1996, § 45, Reports 1996-II).
111. | passage_843 | 153 | 73,814 | 73,936 | |
passage_843::154 | However, as the Court has pointed out in the context of Article 8 of the Convention, whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the rights of an applicant under the Article or in terms of an interference by a public authority, to be justif... | passage_843 | 154 | 73,938 | 74,433 | |
passage_843::155 | (c) Effects of State action or inaction on Tüm Bel Sen’s activities
112. The Court must ascertain in the first place whether the Government’s argument that the judgment of the Court of Cassation of 6 December 1995 had no effect on the union activities of Tüm Bel Sen is confirmed by the facts of the case.
113. | passage_843 | 155 | 74,435 | 74,749 | |
passage_843::156 | It observes in this connection that the said judgment, to the extent that it was found therein that the applicant trade union had not acquired legal personality when it was created and, accordingly, that it was not entitled to take or defend legal proceedings, had two effects on the union’s activities, one retrospectiv... | passage_843 | 156 | 74,751 | 75,102 | |
passage_843::157 | The judgment in question had the retrospective effect of rendering null and void ab initio all the activities and actions that Tüm Bel Sen had undertaken between 1991 and 1993 in relation to the Gaziantep Municipal Council for the purpose of protecting its members’ interests, including the collective agreement involved... | passage_843 | 157 | 75,104 | 75,657 | |
passage_843::158 | As to the prospective effect of the judgment in question, the Court regards as credible the applicants’ argument that the trade union Tüm Bel Sen had seen its activities considerably restricted as a result of the reluctance on the part of the heads of local authorities to enter into negotiations with it. It can be seen... | passage_843 | 158 | 75,659 | 76,220 | |
passage_843::159 | 4688 on 25 June 2001, and, secondly, that even after that date they were themselves obliged to reimburse to the State any additional sums that had been paid at the material time and then in turn bring proceedings against the civil servants who had received them.
116. | passage_843 | 159 | 76,221 | 76,489 | |
passage_843::160 | As noted above (paragraph 88), the Chamber not only considered that there had been an unjustified interference with the rights of the applicants under Article 11 but that, in refusing to recognise the legal personality of the applicants’ trade union, the State had failed to comply with its positive obligation to secure... | passage_843 | 160 | 76,491 | 77,115 | |
passage_843::161 | In the particular circumstances of the present case, the Court considers that both approaches are possible given the mixture of action and inaction on the part of the authorities with which it is confronted. Accordingly, it will proceed on the basis that this part of the case should be analysed from the standpoint of w... | passage_843 | 161 | 77,116 | 77,613 | |
passage_843::162 | Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” for the achievement of those aims.
118. The Court notes that the impugned interference was in accordance with the domestic law as interpreted by t... | passage_843 | 162 | 77,615 | 78,218 | |
passage_843::163 | 119. As to the necessity of such interference in a democratic society, the Court reiterates that lawful restrictions may be imposed on the exercise of trade-union rights by members of the armed forces, of the police or of the administration of the State. However, it must also be borne in mind that the exceptions set o... | passage_843 | 163 | 78,220 | 78,691 | |
passage_843::164 | In determining in such cases whether a “necessity” – and therefore a “pressing social need” – within the meaning of Article 11 § 2 exists, States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those g... | passage_843 | 164 | 78,692 | 79,129 | |
passage_843::165 | The Court must also look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In so doing, the Court has to satisfy itself... | passage_843 | 165 | 79,130 | 79,748 | |
passage_843::166 | 22723/93, 22724/93 and 22725/93, § 51, ECHR 2002II).
120. | passage_843 | 166 | 79,749 | 79,807 | |
passage_843::167 | As to whether, in the present case, the non-recognition of the applicants’ trade union was justified by a “pressing social need”, the Grand Chamber endorses the following assessment of the Chamber:
“... it has not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants ... ... | passage_843 | 167 | 79,809 | 80,380 | |
passage_843::168 | The Court further considers that at the material time there were a number of additional arguments in support of the idea that the non-recognition of the right of the applicants, as municipal civil servants, to form a trade union did not correspond to a “necessity”.
122. Firstly, the right of civil servants to form an... | passage_843 | 168 | 80,382 | 80,870 | |
passage_843::169 | In addition, an examination of European practice shows that the freedom of association of public officials was generally recognised in all member States (see paragraph 106 above).
123. Secondly, Turkey had already, at the material time, ratified (by an instrument deposited on 12 July 1993) ILO Convention No. 87, the ... | passage_843 | 169 | 80,871 | 81,422 | |
passage_843::170 | Lastly, Turkey confirmed, by its subsequent practice, its willingness to recognise the right to organise of civil servants – a willingness already expressed by the ratification of ILO Convention No. 87 in 1993 – by the amendment of the Turkish Constitution in 1995 and by the practice of the judicial organs from the ear... | passage_843 | 170 | 81,424 | 81,919 | |
passage_843::171 | Moreover, in 2000 Turkey signed the two United Nations instruments recognising the right in question (see paragraphs 40 and 41 above).
125. The Court observes that, in spite of these developments in international law, the Turkish authorities were unable to secure to the applicants the right to form a trade union, mai... | passage_843 | 171 | 81,920 | 82,464 | |
passage_843::172 | 4688), which governs the practical application of this right. Secondly, during this transitional period, the combined civil divisions of the Court of Cassation refused to follow the solution proposed by the Gaziantep District Court, which had been guided by developments in international law, and gave a restrictive and ... | passage_843 | 172 | 82,465 | 82,881 | |
passage_843::173 | This interpretation prevented the combined civil divisions from assessing the specific circumstances of the case and from ascertaining whether a fair balance had been struck between the respective interests of the applicants and of the employing authority, Gaziantep Municipal Council (see, mutatis mutandis, Sørensen an... | passage_843 | 173 | 82,882 | 83,240 | |
passage_843::174 | The Court thus considers that the combined effect of the restrictive interpretation by the Court of Cassation and the legislature’s inactivity between 1993 and 2001 prevented the State from fulfilling its obligation to secure to the applicants the enjoyment of their trade-union rights and cannot be justified as “necess... | passage_843 | 174 | 83,242 | 83,845 | |
passage_843::175 | C. Annulment of a collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years
1. The Chamber judgment
128. The Chamber examined this point separately from the complaint concerning the refusal of the Court of Cassation to recognise the right of civil ... | passage_843 | 175 | 83,847 | 84,203 | |
passage_843::176 | As to the question whether there had been a breach of the applicants’ trade-union rights, the Chamber considered that the Court’s case-law did not exclude the possibility that the right to enter into a collective agreement might represent, in the particular circumstances of a case, one of the principal means – even the... | passage_843 | 176 | 84,205 | 84,791 | |
passage_843::177 | The Chamber, after observing that, in the present case, the trade union Tüm Bel Sen had persuaded the authority to engage in collective bargaining and to enter into a collective agreement, and that this agreement had for a period of two years governed all working relations between municipal-council staff and their empl... | passage_843 | 177 | 84,793 | 85,325 | |
passage_843::178 | The Chamber also considered that the interference in question was prescribed by law and that the prevention of discrepancy between practice and the current domestic law could be regarded as a legitimate aim within the meaning of Article 11 § 2 (see § 42 of the Chamber judgment). As regards the justification for the int... | passage_843 | 178 | 85,327 | 85,943 | |
passage_843::179 | The parties agreed that the Grand Chamber had to examine the complaint concerning the annulment of the collective agreement separately from the complaint concerning the applicants’ right to form trade unions.
(a) The Government
133. The Government argued that the complaint relating to the annulment of the collectiv... | passage_843 | 179 | 85,945 | 86,446 | |
passage_843::180 | In the Government’s opinion, it was not appropriate to modify the case-law established in the 1970s to the effect that the right to enter into collective agreements was not a right guaranteed as such by Article 11. Going beyond the early classical cases of National Union of Belgian Police or Swedish Engine Drivers’ Uni... | passage_843 | 180 | 86,448 | 86,985 | |
passage_843::181 | ), no. 53574/99, ECHR 2002I).
135. The Government pointed out in this connection that trade-union rights could be implemented in a number of different forms and they argued that the State was free to select those that were to be used by trade unions. They claimed that it was not for the Court to impose any particular... | passage_843 | 181 | 86,985 | 87,536 | |
passage_843::182 | In certain Contracting States, only contractual State employees (as opposed to career civil servants) enjoyed such a right, while in others only those civil servants who held senior posts were excluded.
137. Lastly, the Government considered that the ILO conventions ratified by Turkey were not pertinent in the contex... | passage_843 | 182 | 87,537 | 88,201 | |
passage_843::183 | They stated that they shared the Chamber’s analysis of this question, while pointing out that the Court of Cassation’s position totally disregarded their rights in this connection.
139. They further agreed with the concurring opinion of three judges in the Chamber who had stated that the right to bargain collectively... | passage_843 | 183 | 88,202 | 88,799 | |
passage_843::184 | development of the Court’s case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union’s collective action, the condu... | passage_843 | 184 | 88,804 | 89,389 | |
passage_843::185 | . | passage_843 | 185 | 89,389 | 89,390 | |
passage_843::186 | 21).
141. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that § 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the m... | passage_843 | 186 | 89,391 | 89,744 | |
passage_843::187 | What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers’ Union, cited above, § 40... | passage_843 | 187 | 89,745 | 90,119 | |
passage_843::188 | As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers’ Union, cited above, § 39). It further stated that this right in no w... | passage_843 | 188 | 90,121 | 90,581 | |
passage_843::189 | Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members’ interests. The uni... | passage_843 | 189 | 90,583 | 91,055 | |
passage_843::190 | As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to it... | passage_843 | 190 | 91,057 | 91,634 | |
passage_843::191 | This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law.
145. | passage_843 | 191 | 91,635 | 91,926 | |
passage_843::192 | From the Court’s case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tüm Haber Sen and Çınar, cited above), the prohibition of closed-shop agreements (see, for example, Sørensen and Rasmussen, cited... | passage_843 | 192 | 91,928 | 92,479 | |
passage_843::193 | On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection, it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, s... | passage_843 | 193 | 92,480 | 93,017 | |
passage_843::194 | In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 100, ECHR 2003II, and Selmouni v. Franc... | passage_843 | 194 | 93,018 | 93,349 | |
passage_843::195 | 25803/94, § 101, ECHR 1999V).
147. The Court observes that in international law, the right to bargain collectively is protected by ILO Convention No. 98 concerning the Right to Organise and to Bargain Collectively. Adopted in 1949, this text, which is one of the fundamental instruments concerning international labour... | passage_843 | 195 | 93,350 | 93,841 | |
passage_843::196 | However, the ILO Committee of Experts interpreted this provision as excluding only those officials whose activities were specific to the administration of the State. With that exception, all other persons employed by government, by public enterprises or by autonomous public institutions should benefit, according to the... | passage_843 | 196 | 93,842 | 94,476 | |
passage_843::197 | 151 (which was adopted in 1978, entered into force in 1981 and has been ratified by Turkey) on labour relations in the public service (“Convention No. 151 concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service”) leaves States free to choose whether o... | passage_843 | 197 | 94,477 | 95,093 | |
passage_843::198 | 151, under its Article 1 § 1, cannot be used to reduce the extent of the guarantees provided for in Convention No. 98 (see paragraph 44 above).
149. As to European instruments, the Court finds that the European Social Charter, in its Article 6 § 2 (which Turkey has not ratified), affords to all workers, and to all tr... | passage_843 | 198 | 95,094 | 95,661 |
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