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issued by the Registrar of the Court

ECHR 135 (2015)


21.04.2015

The ban on strike action imposed on a police trade union did not infringe
its freedom of association
In todays Chamber judgment1 in the case of Junta Rectora Del Ertzainen Nazional Elkartasuna
(ER.N.E.) v. Spain (application no. 45892/09), the European Court of Human Rights held,
unanimously, that there had been:
No violation of Article 11 (freedom of association) of the European Convention on Human Rights,
taken alone and in conjunction with Article 14 (prohibition of discrimination).
The case concerned the inability of the members of a police officers trade union to exercise the
right to strike.
The Court found in particular that the more stringent requirements imposed on law-enforcement
agents, on account of the fact that they were armed and of the need for them to provide an
uninterrupted service, justified the ban on strike action in so far as public safety and the prevention
of disorder were at stake.
The Court noted that the specific nature of these agents duties warranted granting the State a lot of
room for manoeuvre (a wide margin of appreciation) to regulate certain aspects of the trade
unions activities in the public interest, without however depriving the union of the core content of
its rights under Article 11.

Principal facts
The applicant trade union, Junta Rectora Del Ertzainen Nazional Elkartasuna (ER.N.E.), which has its
registered office in Bilbao (Spain), was founded in 1984 and is the largest trade union representing
the Ertzainas, who are the police officers of the Basque country and perform their duties within the
jurisdiction of that Autonomous Community.
In 2004, following the collapse of negotiations on police officers working conditions between the
Department of the Interior of the Government of the Basque Autonomous Community and the
applicant trade union, the latter requested authorisation for the Ertzainas to take strike action.
The request was refused on the grounds that section 6(8) of Institutional Law no. 2/1986 of
13 March 1986 on the security forces barred members of the State security forces from exercising
the right to strike in any circumstances. According to the refusal decision, the police of the Basque
Autonomous Community formed part of the security forces in question. All the appeals lodged by
the applicant trade union, including an amparo appeal, were dismissed on the ground that the
provision in issue was not in breach of the constitutional requirements regarding the right to strike
and the prohibition of discrimination.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Complaints, procedure and composition of the Court


Relying on Article 11 of the Convention (freedom of assembly and association), taken alone and in
conjunction with Article 14 (prohibition of discrimination), the applicant trade union complained of
the ban on strike action imposed on Ertzainas, which, in its view, discriminated against them
compared with other groups which performed similar duties but had the right to strike. Under
Article 6 1 (right to a fair hearing), taken alone and in conjunction with Article 11, ER.N.E. alleged
that the decision dismissing its amparo appeal had not provided sufficient reasons and had been in
breach of its right to obtain a ruling on the substance of its claims.
The application was lodged with the European Court of Human Rights on 18 August 2009.
Judgment was given by a Chamber of seven judges, composed as follows:
Josep Casadevall (Andorra), President,
Luis Lpez Guerra (Spain),
Jn ikuta (Slovakia),
Dragoljub Popovi (Serbia),
Kristina Pardalos (San Marino),
Johannes Silvis (the Netherlands),
Valeriu Grico (the Republic of Moldova),
and also Stephen Phillips, Section Registrar.

Decision of the Court


Article 11 taken alone and in conjunction with Article 14
Section 6(8) of Institutional Law no. 2/1986 of 13 March 1986 on the security forces, which barred
members of the State security forces from exercising the right to strike in any circumstances, had
formed the legal basis for the interference with the exercise of ER.N.E.s right to organise. It was
apparent from the wording of the Law, which was sufficiently clear, that the applicant trade union,
whose members belonged to the category of law-enforcement agents, could expect to be covered
by the ban in question. The interference in issue had pursued the legitimate aim of preventing
disorder, in view of the specific duties assigned to the police force and the potential consequences
of interruption of its activities.
In the Courts view, the need for law-enforcement agents to provide an uninterrupted service and
the fact that they were armed distinguished them from other civil servants such as judges or
doctors, and justified the restriction of their right to organise. The more stringent requirements
imposed on them did not exceed what was necessary in a democratic society, in so far as those
requirements served to protect the States general interests and, in particular, to ensure national
security, public safety and the prevention of disorder.
Furthermore, the specific nature of the activities in question warranted granting the State sufficient
room for manoeuvre (a wide margin of appreciation) to implement its legislative policy and
regulate certain aspects of the trade unions activities in the public interest, without however
depriving the union of the core content of its rights under Article 11. The Court noted in that
connection that the Committee of Ministers2 had taken the view that a complete ban on the right to
strike for police was not contradictory to the Social Charter and its case-law. The Court saw no
reason to depart from that finding.

Recommendation of the Committee of Ministers to member states on the European Code of Police Ethics (Recommendation
Rec(2001)10 of 19 September 2001)

As to the issue of possible discrimination, the Court found that the explanations provided by the
Government as to the specific nature of the duties attributed by law to the State security forces
were reasonable and did not disclose any arbitrariness suggestive of discrimination.
Accordingly, the Court held that there had been no violation of Article 11, taken alone and in
conjunction with Article 14 of the Convention.

Article 6 taken alone and in conjunction with Article 11


In the Courts view, the inadmissibility decision given by the Constitutional Court should be regarded
as duly reasoned and not arbitrary, as the Constitutional Court had provided explicit reasons in each
instance for rejecting the complaints raised by the applicant trade union.
The Court therefore rejected this complaint as being manifestly ill-founded.
The judgment is available only in French.
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