Freedom of Association Cases Flashcards
McFeeley v UK (1981)
ECHR ART 11
• Is solitary confinement of prisoners an interference with their freedom of association rights?
• Freedom of association is concerned with the right to form or be affiliated with a group or organisation pursuing particular aims. It does not concern the right of prisoners to share the company of other prisoners or to “associate” with other prisoners in this sense
United Communist Party v Turkey (1998)
ECHR ART 11
political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Art. 11
Refah Partisi (Welfare Party) and Others v Turkey ECHR Grand Chamber
ECHR ART 11
• “Democracy is without doubt a fundamental feature of the European public order”
• “There can be no democracy without pluralism”
• “The freedoms guaranteed by Article 11, […], cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State’s institutions, of the right to protect those institutions”
• So:
• a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions:
o The means used to that end must be legal and democratic
o The change proposed must itself be compatible with fundamental democratic principles
Redfearn v UK (2012)
ECHR ART 11
• Is being a member of a political party protected under Article 11 ECHR?
• Applicant is a white male bus driver in Bradford
• Elected as local councillor for BNP
• Dismissed from job
• U.K. Employment Law requires one year of service before an employee can bring an action for unfair dismissal against her employer
• Applicant had worked for company for less than one year, can’t benefit from unfair dismissal claim.
• Issue: Has UK taken reasonable and appropriate measures to protect the applicant’s freedom of association?
• Held:
• Violation of Article 11 ECHR
• Positive obligation on the state to protect against dismissal based on affiliation with a political party.
• U.K. employment law failed to provide applicant with a claim to have the proportionality of his dismissal examined by a court.
• U.K. law categorically excludes all possibility of balancing the interests of employers against those of dismissed employees on the basis of their political beliefs or affiliations
o Question of proportionality
• Applicant must have a right to challenge his dismissal notwithstanding the nature of his political beliefs and his public identification with the BNP’s policies
• ECtHR: “the right to freedom of association under Art. 11 must apply not only to people or association whose views are favourably received or regarded as inoffensive, but also whose views offend, shock or disturb’
Wilson, National Union of Journalists and Others v UK (2002)
ECHR ART 11
• Employers were using economic incentives to get workers to give up some of their trade union rights.
• This was a violation of Art. 11 of both the individuals and the trade unions themselves.
• It’s the positive obligation of the state under Art. 11 to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers
ASLGF v UK (2007)
ECHR ART 11
Freedom of association also includes the right of a trade union to expel one of their members as long as this was not the result of an abusive and unreasonable conduct by the trade union
Young, James and Webster v UK (1981)
ECHR ART 11
o In this case there was a closed shop agreement between British Rail and three railway workers unions. The 3 applicants were dismissed by their employer because they refused to join the designated trade union
o The Court ruled that Article 11 gives to workers the freedom to choose whether to belong to a given trade union or not and ruled that the UK legislation that allowed dismissal for refusal to join a trade union was in breach of Article 11
Danilenkov and Others v Russia (2009)
ECHR ART 11
• Members of a union that had undertaken strike action were subjected to retaliatory measures including: Reassignment of members to special work teams, Decrease in the earning potential of member team, Some were made redundant
• Violation of Article 11 ECHR
• Positive obligation: “Measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership”
National Union of Rail, Maritime and Transport Workers v UK (2014)
ECHR ART 11
• UK statutory ban on secondary industrial action / sympathy strikes challenged by applicants.
• The Court held that there had been no violation of Article 11 of the Convention, finding that there was nothing in the facts raised by the applicant union to show that the general prohibition on secondary strikes had had a disproportionate effect on their rights under Article 11. The United Kingdom had therefore remained within its margin
