NGOs under European Convention on Human Rights / Tymofeyeva

incompatible with the prescriptions of the military discipline. 947 In the Matelly case , an officer in the French gendarmerie belonging to the military was forced to resign from an association named Forum gendarmes et citoyens . The organisation was considered a trade-union-like occupational group, which was prohibited under the same article L. 4121-4 of the Defence Code. The Court concluded that the impugned measures amounted to interference with the rights to form and join trade unions. The Defence Code provided the measures, which had the legitimate aim of preserving the necessary order and discipline in the armed forces. The Court added that the French authorities failed to take into account Mr Matelly’s attitude and wish to comply with his obligations. Further, by prohibiting the applicant association from bringing a court action because of the trade-union nature of its stated aim, without identifying in tangible terms the individual restrictions required by the specific role of the military, the domestic authorities had undermined the very essence of freedom of association. Consequently, in both cases, governmental bodies did not comply with their duty to strike a fair balance between the relevant competing interests. Although the freedom of association of military personnel could be subject to legitimate restrictions, a blanket ban on forming or joining a trade union encroached on the very essence of that freedom and was prohibited by the Convention as such. The Court found a breach of Article 11 in both cases. In these two cases, the Court did not distinguish between police and armed forces. This may lead to an understanding that military personnel must also be guaranteed the right to strike. 948 The issue of a refusal to register a trade union for church employees and the resulting limitation of the right to form the trade union was the subject of Sindicatul “Păstorul cel Bun” v. Romania. In this case, the Court initially held, by five votes to two, that there was a violation of Article 11, 949 but later the Grand Chamber of the Court found, by eleven votes to six, that there had been no infringement of this Article of the Convention 950 in respect of the applicant. Though the final argumentation of the Court was different, it is interesting to follow its line of consideration in the first hearing. To begin, it is necessary to summarise the facts of the case. In 2008, members of the Romanian Orthodox Church decided to establish a trade union called “Păstorul cel Bun” . The domestic court granted it legal personality at the request of the union’s elected president. The representative of the Archdiocese lodged an objection and appealed against that judgment. In its final judgment, the county court allowed the appeal, set aside the first-instance judgment and, on the merits, dismissed the union’s request to be granted legal personality and entered in the trade-unions register. In the 31 January 2012 judgment, a Chamber of the Court found that in the absence of a ‘pressing social need’ or of sufficient reasons, a measure as drastic as the refusal to register the applicant union had been disproportionate to the aim Adefdromil, cited above , § 16-17. 948 VAN HIEL, I. Blanket ban on the right of military personnel to form and join a trade union violates Article 11 ECHR. URL: accessed 20 July 2015. 949 Sindicatul “Păstorul cel Bun” v. Romania , no. 2330/09, 31 January 2012. 950 Ibid. 947

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