CASE OF HRVATSKI LIJEČNIČKI SINDIKAT v. CROATIA
Preliminary objection joined to merits and dismissed (Article 34 - Locus standi);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Non-pecuniary damage - finding of violation sufficient
Christoph Grabenwarter;Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant union is a trade union of medical practitioners incorporated under Croatian law. Its registered office is in Zagreb. 6. On 8 December 2004 the Government of Croatia on the one side, and the Autonomous Trade Union for the Health Service and Social Protection Service of Croatia, the Croatian Professional Trade Union of Nurses, the Trade Union of Workers in the Health Service, Social Service and Disability Pension Insurance of Croatia, and the applicant union on the other, concluded the Collective Agreement for the Health and Health Insurance Sector (Kolektivni ugovor za djelatnost zdravstva i zdravstvenog osiguranja – hereinafter “the Collective Agreement” or “the main Collective Agreement”). Its clause 102 stipulated that the agreement would enter into force on 15 January 2005 if approved by a majority of the votes cast in a referendum, in which at least one third of those employed in the health-care institutions and the Croatian Health Insurance Fund voted. The Collective Agreement was approved in the referendum held on 5 January 2005 and entered into force, as envisaged, on 15 January 2005. 7. In order to regulate issues specific to doctors and dentists, on 8 December 2004 the Government of Croatia and the applicant union also concluded the Collective Agreement for the Medical and Dentistry Sector (Strukovni kolektivni ugovor za liječničku i stomatološku djelatnost), which formed an annex (hereinafter “the Annex”) to the above-mentioned main Collective Agreement. Clauses 6 and 98(2) of the Annex stipulated that if doctors approved it in a referendum, it would enter into force on 15 January 2005. 8. On 15 December 2004 the Autonomous Trade Union for the Health Service and Social Protection Service of Croatia and the Croatian Professional Trade Union of Nurses instituted civil proceedings against the State and the applicant union, seeking to declare the Annex null and void because it had not been entered into by all the trade unions that had concluded the main Collective Agreement, contrary to the law (for a more detailed description of the course of those proceedings see paragraphs 26-30 below). 9. On 29 December 2004 the Government of Croatia adopted an instruction whereby it (a) instructed the State Attorney’s Office to acknowledge the plaintiffs’ claim in those proceedings because it was well-founded, with a view to having the Annex declared null and void, and (b) instructed the Ministry of Health and Social Welfare to immediately commence negotiations on the conclusion of a new collective agreement for the medical and dentistry sector. 10. Meanwhile, on 21 December 2004 the referendum committee issued a decision to hold the referendum mentioned in the Annex (see paragraph 7 above). 11. However, on 31 December 2004 the President of the Socio-Economic Council (Gospodarsko-socijalno vijeće) – a tripartite body consisting of representatives of trade unions, employers and the Government – set aside the decision on holding the referendum. 12. The referendum was nevertheless held on 5 January 2005. Of 11,016 doctors, 8,290 voted; 8,255 voted “yes” and twenty-five voted “no”. 13. On 18 January 2005 the President of the Socio-Economic Council issued a decision not to recognise the results of the referendum. 14. In a letter to the Ministry of Health and Social Welfare of 23 March 2005, the applicant union announced a strike for 11 April 2005. It stated that the strike was being organised in order to (a) protect the social and economic interests of doctors by insisting that the Government of Croatia honour its obligations arising from the Annex, (b) have the results of the referendum on the approval of the Annex recognised, and (c), as an subsidiary ground for the strike, address issues specific to doctors and dentists within the healthcare system by demanding that a collective agreement for the medical and dentistry sector be concluded. In particular, as regards the last-mentioned ground the applicant union stated as follows: “– addressing issues specific to doctors within the healthcare sector by concluding a collective agreement for the medical and dentistry sector. As a subsidiary ground for the strike, the Croatian Medical Union notes that the [main] Collective Agreement for the Health and Health Insurance Sector does not address issues specific to the medical and dentistry professions. Therefore, on the instruction of the Government of Croatia and in accordance with the opinion of the Socio-Economic Council ... of 31 March 2004, the Annex to that Collective Agreement addressing issues specific to doctors was concluded at the same time [as the aforementioned collective agreement]. In that way, issues specific to doctors within the healthcare and health-insurance sectors were comprehensively addressed. Given that at present the Government of Croatia refuse to apply the Collective Agreement for the Medical and Dentistry Sector [i.e. the Annex], and issues specific to the medical and dentistry professions, including a salary increase and other pecuniary rights of doctors, are not addressed in the [main] Collective Agreement for the Health and Health Insurance Sector, a subsidiary ground for the strike is to demand that the Government address issues specific to jobs and professions of doctors and dentists within the healthcare and health-insurance sectors.” 15. On the same day the Ministry of Health and Social Welfare invited the applicant union to conclude a new collective agreement for the medical and dentistry sector in the form of an annex to the main Collective Agreement. The draft of the new annex was enclosed with the Ministry’s letter. The Ministry emphasised that the draft envisaged a salary supplement amounting to 10% of the basic salary of doctors and dentists in 2005 on account of their increased responsibility for the life and health of patients. It also added that the other trade unions, parties to the main Collective Agreement agreed with the draft, and invited the applicant union to inform it within seven days whether it accepted the draft. 16. On 30 March 2005 the applicant union informed the Ministry that, regrettably, the proposed draft did not address the important issues specific to doctors and dentists within the healthcare sector. 17. On 5 April 2005 the Government of Croatia adopted a decree whereby it unilaterally increased salaries of doctors and dentists by 10% in 2005 (see paragraph 38 below). 18. On the same day, 5 April 2005, the State brought an action against the applicant union in the Zagreb County Court (Županijski sud u Zagrebu), asking the court to prohibit the announced strike. The plaintiff argued that the announced strike would be illegal because it would seek to enforce the Annex, which had never entered into force given that the decision to hold the referendum required for its coming into force had been set aside (see paragraphs 7, 11 and 13 above). 19. By a judgment of 8 April 2005 the County Court found for the State and prohibited the strike. It held that seeking compliance with the obligations arising from a collective agreement or the recognition of the results of a referendum were not permitted grounds for a strike under section 210(1) of the Labour Act (see paragraph 32 below). The relevant part of that judgment reads as follows: “From the cited provision [that is, section 210(1)] it follows that, by using the formulation ‘in order to protect and promote the economic and social interests’, the legislator clearly excluded enforcement of the rights stipulated in a particular collective agreement as a permitted ground for a strike because ... the individual and collective enforcement of rights stipulated in a collective agreement is regulated by sections [191] and [202] of the Labour Act. ... As regards the subsidiary ground for the strike ... it has to be noted that the defendant’s representative stated at the main hearing that this ground had been listed as subsidiary in case [the Annex was in the meantime declared invalid] in the [parallel] proceedings pending before the Municipal Court. ... Finally, it has to be concluded that a strike is legally allowed only in industrial disputes on ... matters that are not legally regulated, and not in those which [are]. Given that the defendant insists on compliance with the [Annex], it is evident that the matters [in dispute] ... are regulated by that Annex and that the procedure for [its] entry into force is also legally regulated, for which reason the substantive requirements for organising the strike are not satisfied.” 20. The applicant union then appealed against that judgment to the Supreme Court (Vrhovni sud Republike Hrvatske). 21. On 11 April 2005 the applicant union held the strike as planned because under the domestic law its appeal prevented the County Court’s judgment from becoming final. According to media reports the applicant union alleged that almost 90% of some 8,000 doctors and dentists had participated in the strike whereas the Minister of Health claimed that only 25% of them had actually been striking while the others had merely expressed solidarity. The Minister also stated for the media that 85% of the services had been rendered and that work stoppages occurred in one out of five clinical centres, one out of seven university hospitals and in six out of 22 general hospitals. The strike lasted until 13 April 2005 when the applicant union called it off in order to comply with the County Court’s subsequent provisional measure of 12 April 2005 prohibiting the strike (see the next paragraph). 22. Following a request by the State, on 12 April 2005 the Zagreb County Court imposed a provisional measure prohibiting the strike until that court’s judgment of 8 April 2005 became final, that is, until the Supreme Court decided on the applicant union’s appeal against the judgment. On 21 April 2005 the Supreme Court dismissed the applicant union’s appeal against the decision imposing the provisional measure. 23. By a judgment of 27 April 2005 the Supreme Court dismissed the applicant union’s appeal against the County Court’s judgment of 8 April 2005 (see paragraphs 19-20 above). It held that the Annex was invalid because it had not been entered into by all the trade unions that had concluded the Collective Agreement, contrary to section 186(1) of the Labour Act (see paragraph 32 below), and that therefore any further action based on that agreement, including the strike, was unlawful. The relevant part of the Supreme Court’s judgment reads as follows: “Given that the Annex was found to be invalid, that is, unlawful, any further actions by the signatories of such an unlawful collective agreement, such as calling for and holding a referendum ... as well as the two first grounds for the strike, which are also based on the unlawful Annex, are also unlawful. The view of the first-instance court that it was not necessary to address the third, subsidiary, ground for the strike is correct. This is so because, as stated by the defendant’s representative at the hearing held on 8 April 2005, this ground had been listed as subsidiary in case [the Annex was in the meantime declared invalid] in the [parallel] proceedings pending before the Municipal Court, a condition which has not been met.” 24. On 30 May 2005 the applicant union lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s judgment alleging violations of, inter alia, its constitutionally-guaranteed right to strike and its freedom of association guaranteed by the Convention. In so doing the applicant union relied on Article 60 of the Constitution (see paragraph 31 below) and Article 11 of the Convention. 25. On 17 December 2008 the Constitutional Court dismissed the applicant union’s constitutional complaint and served its decision on the applicant union’s representatives on 26 January 2009. The relevant part of that decision reads as follows: “Having established that the [contested] judicial decisions were based on the relevant provisions of the Labour Act, the Constitutional Court finds that those decisions were not in breach of the complainant’s constitutional right [provided] in Article 60 paragraph 1 of the Constitution nor [were they in breach] of the international-law provisions the complainant relied on.” 26. Meanwhile, as already noted above (see paragraph 8) on 15 December 2004 the Autonomous Trade Union for the Health Service and Social Protection Service of Croatia and the Croatian Professional Trade Union of Nurses brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the State and the applicant union, seeking to declare the Annex null and void. 27. On 19 October 2006 the Zagreb Municipal Court found for the plaintiffs and declared the Annex null and void. 28. On 16 December 2008 the Zagreb County Court dismissed the applicant union’s appeal and upheld the first-instance judgment, which thereby became final. 29. On 17 March 2010 the Supreme Court dismissed a subsequent appeal on points of law (revizija) lodged by the applicant union. It endorsed the reasoning of the lower courts which had found the Annex invalid because it had not been entered into by all the trade unions that had concluded the main Collective Agreement, contrary to section 186(1) of the Labour Act (see paragraph 32 below) and clause 21 of that collective agreement (see paragraph 36 below). 30. On 16 March 2011 the Constitutional Court dismissed a constitutional complaint lodged by the applicant union.