EUROPEAN COURT OF HUMAN RIGHTS
CASE OF DANILENKOV AND OTHERS v. RUSSIA
(Application No. 67336/01)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Danilenkov and Others v. Russia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Rait Maruste, President,
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 14 April and 7 July 2009,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (No. 67336/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by thirty-two Russian nationals, listed below ("the applicants"), on 9 February 2001. All the applicants are members of the Kaliningrad branch of the Dockers' Union of Russia ("the DUR").
2. The applicants, who had been granted legal aid, were represented by Mr M. Chesalin, Chairman of the DUR in Kaliningrad seaport. The Russian Government ("the Government") were represented successively by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
3. The applicants alleged, in particular, that their rights to freedom of association and freedom from discrimination had been breached and that they had not had effective domestic remedies in respect of their discrimination complaint.
4. On 19 October 2004 the application was declared admissible.
5. The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Court decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).
I. The circumstances of the case
6. The applicants are:
(1) Mr Sergey Nikolayevich Danilenkov, born in 1965;
(2) Mr Vladimir Mikhaylovich Sinyakov, born in 1948;
(3) Mr Boris Pavlovich Soshnikov, born in 1951;
(4) Mr Anatoliy Nikolayevich Kasyanov, born in 1958;
(5) Mr Viktor Mikhaylovich Morozov, born in 1947;
(6) Mr Anatoliy Yegorovich Troynikov, born in 1947;
(7) Mr Dmitriy Yuryevich Korzhachkin, born in 1969;
(8) Mr Yuriy Ivanovich Zharkikh, born in 1970;
(9) Mr Anatoliy Ivanovich Kiselev, born in 1949;
(10) Mr Yuriy Anatolyevich Bychkov, born in 1969;
(11) Mr Aleksandr Igorevich Pushkarev, born in 1961;
(12) Mr Gennadiy Ivanovich Silvanovich, born in 1960;
(13) Mr Ivan Vasilyevich Oksenchuk, born in 1946;
(14) Mr Gennadiy Adamovich Kalchevskiy, born in 1957;
(15) Mr Aleksandr Ivanovich Dolgalev, born in 1957;
(16) Mr Vladimir Fedorovich Grabchuk, born in 1956;
(17) Mr Aleksandr Fedorovich Tsarev, born in 1954;
(18) Mr Aleksandr Yevgenyevich Milinets, born in 1967;
(19) Mr Lukshis Aldevinas Vintso, born in 1955;
(20) Mr Aleksandr Fedorovich Verkhoturtsev, born in 1955;
(21) Mr Igor Nikolayevich Vdovchenko, born in 1966;
(22) Mr Igor Yuryevich Zverev, born in 1969;
(23) Mr Nikolay Grigoryevich Yegorov, born in 1958;
(24) Mr Aleksandr Konstantinovich Lemashov, born in 1955;
(25) Mr Nikolay Nikolayevich Grushevoy, born in 1957;
(26) Mr Petr Ivanovich Mironchuk, born in 1959;
(27) Mr Nikolay Yegorovich Yakovenko, born in 1949;
(28) Mr Yuriy Yevgenyevich Malinovskiy, born in 1971;
(29) Mr Oleg Anatolyevich Tolkachev, born in 1964;
(30) Mr Aleksandr Viktorovich Solovyev, born in 1956;
(31) Mr Aleksandr Mikhaylovich Lenichkin, born in 1936;
(32) Mr Vladimir Petrovich Kolyadin, born in 1954.
7. The applicants are Russian nationals who live in Kaliningrad. The twentieth and thirty-first applicants died on unspecified dates.
A. Background to the application
8. A branch of the Dockers' Union of Russia was established in 1995 in Kaliningrad seaport as an alternative to the traditional Maritime Transport Workers' Union. The branch was officially registered with the Kaliningrad Justice Department on 3 October 1995.
9. The applicants' employer, the private company Kaliningrad Commercial Seaport Co. Ltd. (ЗАО "Морской торговый порт Калининград" - "the seaport company"), was established on 30 June 1998 as a result of the reorganisation of the limited company Commercial Seaport of Kaliningrad and was the legal successor to the latter. On 20 July 1998 the Administrative Authority of the Baltiyskiy District of Kaliningrad officially registered the new legal entity. On 25 April 2002 the private company was converted into a public company under the same name (ОАО "МПТК").
10. The applicants indicated that on 4 March 1997 the Governor of the Kaliningrad Region had issued Resolution No. 183 establishing the Development Fund of the Kaliningrad Region ("the Fund") and appointing five officials of the Kaliningrad Regional Administrative Authority to its board of management. The Governor himself became the chairman of the board and Mr Karetniy, the first deputy Governor, was appointed Fund manager.
11. According to the applicants, between 1998 and 2000 Mr Karetniy was a member of the board of directors of the seaport company. During that time Mr Karetniy also managed, through a company called Regionk which was controlled by him, a further 35% of the seaport company shares. Thus, the applicants inferred that their employer had at the material time been under the effective control of the State: both directly (20% of shares owned by the Fund) and indirectly (35% of the shares managed by an official of the regional administrative authority).
12. According to the documents submitted by the Government, Kaliningrad seaport had been in private ownership and the Fund had acquired only 19.93% of its shares (0.09% in May 1997 and 19.84% in May 1998); therefore it could not be said that the State had effective control over its activity. Moreover, the seaport company's shares held by the Fund had been transferred on 28 November 2000 to the joint-stock company Zemland Eskima (ЗАО "Земланд Эскима"). With regard to Mr Karetniy, the Government submitted that he had been a member of the board of directors of the seaport company; however at that time he had not been a civil servant. The applicants' allegation that he controlled Regionk was not supported by any evidence. They further alleged that the extent of State effective control had been limited to monitoring the company's compliance with the applicable laws.
B. Alleged discrimination by the seaport management
13. In May 1996 the DUR took part in collective bargaining. A new collective labour agreement was signed, which provided for longer annual leave and better pay conditions. As a result, over a period of two years DUR membership grew from 11 to 275 (on 14 October 1997). The applicants stated that Kaliningrad seaport employed over five hundred dockers at the material time.
14. On 14 October 1997 the DUR began a two-week strike over pay, better working conditions and health and life insurance. The strike failed to achieve its goals and was discontinued on 28 October 1997.
15. The applicants submitted that since 28 October 1997 the management of Kaliningrad seaport had been harassing DUR members to penalise them for the strike and incite them to relinquish their union membership.
1. Reassignment of DUR members to special work teams
16. On 28 October 1997 the managing director of Kaliningrad seaport issued an order whereby two special work teams (Nos. 109 and 110) referred to as "dockers' reserve teams", with a staff capacity of up to 40 workers each, were formed. These teams had originally been created for older or health-impaired dockers who could not perform at full capacity. They had had insufficient numbers of workers (six persons compared with 14 - 16 persons in other work teams) to handle cargoes and, after their merger into one team (No. 109), they had been assigned to work in day shifts lasting eight hours, while other teams worked alternating day and night shifts of eleven hours. By the order of 28 October 1997 older and health-impaired dockers were transferred to the newly formed team No. 117 and the majority of dockers who had taken part in the strike were assigned to the re-formed "reserve teams" Nos. 109 and 110.
17. According to the applicants, their earning time had been substantially reduced as a result of their transfer to "reserve teams" assigned to work day shifts only. In late November 1997 the managing director attempted to encourage their co-workers to relinquish their DUR membership by immediately transferring those who left the union into non-DUR teams which had access to actual cargo-handling work.
18. On 1 December 1997 the new composition of the teams was made official and the managing director ordered the teams to be re-numbered. The applicants were transferred to four teams which comprised only DUR members who had taken part in the strike (teams Nos. 9, 10, 12 and 13). Teams Nos. 12 and 13 had a work schedule similar to other teams, while teams Nos. 9 and 10 (formerly Nos. 109 and 110) were assigned to work 11-hour day shifts on two consecutive days followed by two days off.
2. Decrease in the earning potential of DUR-member teams
19. According to the applicants, until December 1997 it had been established practice for the leaders of the teams on duty to take turns to choose the work for their team. After 1 December 1997 the managing director unofficially excluded the leaders of the DUR teams from the traditional arrangement, effectively confining their options to the least lucrative work. The applicants' income fell by half to three quarters because they did not receive any cargo-handling work paid at piece rates, but performed only auxiliary work paid by the hour at half the normal rate.
20. On 21 January 1998 the State Labour Inspector ordered the human resources director of the applicants' employer to compensate dockers in the reorganised teams for lost earnings. On 2 February 1998 the human resources director replied that the reorganisation of teams was an internal matter for the seaport company and that, given that all dockers received equal pay for equal work, there was no legal basis for granting compensation.
21. The applicants further alleged that their employer had deliberately kept the DUR teams understaffed (in August 1998 there had been three persons in teams Nos. 9 and 10 and six persons in teams Nos. 12 and 13) so as to have an excuse not to give them access to cargo-handling work.
22. The first and second applicants complained to the State Labour Inspectorate about the reassignment of DUR members to the special teams. On 25 August 1998 the head of the State Labour Inspectorate for the Kaliningrad Region issued an instruction (предписание) to the acting managing director of Kaliningard seaport. The Inspectorate found, in particular, that dockers were being assigned to teams on the basis of their trade union membership. Such an arrangement was in breach of section 9 § 1 of the Trade Union Act and prevented several teams from performing at full capacity as they were understaffed. The Inspectorate ordered that all the changes to the composition of work teams be reversed, in order to restore their staff numbers to normal levels.
23. On 4 November 1998 the managing director ordered the reassignment of dockers from the four DUR teams, each of which had fewer than five workers at the time, to other teams. On 1 December 1998 the remaining workers in the four DUR teams were brought together to form a new team (No. 14) and the first applicant was appointed as team leader.
3. Holding of the safety regulations test
24. Between 15 April and 14 May 1998 the annual test of dockers' knowledge of the work safety regulations was held. The DUR representative was not allowed to be a member of the test committee or even to be present during the test.
25. The applicants submitted that the test conditions had not been fair and had been prejudicial to DUR members: 79 out of the 89 dockers who failed the test had been DUR members, while on 1 June 1998 the seaport company had employed 438 dockers, of whom only 212 were DUR members. According to the Government, only 44 dockers who failed the test had had DUR membership. Dockers who failed the test were suspended from cargo-handling work for one week.
26. At the second attempt on 3 - 5 June, 20 workers again failed the test, 17 of them DUR members. The applicants submitted that a week after the test two non-DUR members had been permitted to work, while the DUR members had been laid off and not given an opportunity to re-take the test. The applicants submitted that the seaport management had rewarded those who agreed to relinquish their union membership with a pass mark for the test and permission to return to work. One applicant had had to hand in his dismissal and find employment outside the seaport.
27. On 25 August 1998 the State Work Safety Inspector ordered the annulment of the results of the safety regulations test on the ground that the composition of the test committee had not been agreed with the DUR. The Inspector ordered that the test be organised again within one month with the participation of the DUR and that the dockers be provided with reference materials on safety regulations.
28. On 29 October 1998 the test was held for the third time in the presence of a DUR representative and an official of the State Work Safety Inspectorate. Out of five DUR members who sat the test, four received the highest mark and the fifth person received the second-highest mark.
4. Dockers' redundancies in 1998 - 99
29. On 26 March 1998 the seaport management issued a notice to the effect that 112 dockers would be made redundant.
30. On 10 August 1998 33 dockers, formerly staff members, were transferred to "as-needed" contracts. The applicants pointed out that 27 of the transferred dockers (81.8%) had been DUR members, while at the material time the average rate of DUR membership in the seaport was 33%. The applicants alleged that the transferred dockers were on average better qualified than their co-workers who had been*>*>*>*>