CASE OF VENIAMIN TYMOSHENKO AND OTHERS v. UKRAINE
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
6. At the material time the applicants were employed by the CJSC “AeroSvit Airlines” (“AeroSvit”) as aircraft cabin crew. 7. As confirmed, in particular, by the minutes of the trade union’s constituent assembly of 2 July 2003, all the applicants were members of the company’s trade union. Mr Tymoshenko was its chairman. 8. On 16 February 2011 the National Mediation and Reconciliation Service (“the NMRS”) registered a collective labour dispute between the employees and the management of AeroSvit. The employees’ demands concerned, in particular, the following issues: repairs to the aircraft electronic catering and air-conditioning equipment; enhancing the safety of on-flight technical processes; salary payments to be made no later than three days before a period of leave; full and timely salary payments twice per month; a 3% pay rise and recalculation of salaries for 2009 and 2010; salary payment on the basis of the exchange rate of the US dollar and the Ukrainian hryvnia as established by the National Bank of Ukraine, with salaries to be recalculated from 2008; recalculation of long-service bonuses; ensuring transportation of aircraft cabin crew to and from the airport; establishing a USD 50 per diem allowance for all foreign flights; uniform cleaning and ironing to be at the employer’s expense; allocation of at least 0.3% of the salary budget for cultural and sporting events; awarding employees a bonus of 3.23% from the 2008 profits; and inflation adjustment of salaries if payment was delayed, with effect from December 2008. 9. On 16 March and 12 April 2011 the NMRS deregistered some of the employees’ demands, noting that they had been resolved, with reference to decisions of the reconciliation commissions of 28 February, 10 and 30 March 2011. 10. On 27 May 2011 the NMRS Labour Arbitration Court delivered its decision on the employees’ remaining demands, following a hearing in which representatives of both parties participated. It found most of the demands to be legitimate and directed the employer to comply with them. 11. In the absence of any compliance measures, AeroSvit cabin crew, including the applicants, decided to embark on industrial action. 12. On 9 September 2011 the general meeting of AeroSvit employees, seeking resolution of the labour dispute, announced a strike of 150 aircraft cabin crew members. The strike was due to start on 28 September 2011 and continue until the employees’ demands were fully met. The announcement specified that all foreign flights which began prior to the beginning of the strike would be completed. The meeting appointed a strike committee of six persons (including all of the applicants except Mr Pushnyak, who, however, attended the meeting and voted in favour of the strike). The committee was vested with the following powers: to conduct negotiations on behalf of the employees with the company’s management and State authorities; to draw attention to the strike in the mass media; to receive information from the company’s management on compliance with the employees’ requirements; to initiate and participate in a reconciliation commission; to organise and conduct meetings and pickets in support of the demands put forward; to sign agreements with the owner or an authorised representative on resolution of the labour dispute; and to consult the NMRS. 13. By 12 September 2011 the strike committee had notified the following authorities about the decision to hold a strike: the employer, the NMRS, the Infrastructure Ministry, the State Aviation Administration, the Social Policy Ministry, the State Labour Inspection, the Parliamentary Ombudsman, as well as a number of other institutions and organisations. 14. On 19 September 2011 the management of AeroSvit lodged a claim with the Darnytskyy District Court of Kyiv (“the Darnytskyy Court”) against the flight attendants’ trade union, seeking to have the strike declared unlawful. 15. On 26 September 2011 the Darnytskyy Court held the first hearing on the case. Another hearing was scheduled for the morning of 28 September 2011. 16. The planned hearing did not take place for reasons unknown to the applicants. They later discovered that the judge had been on sick leave. 17. On 28 September 2011 the management of AeroSvit Airlines brought another claim, this time before the Boryspil City Court (“the Boryspil Court”) and against the strike committee, seeking to have the strike declared unlawful. 18. On 29 September 2011 the Boryspil Court, in written proceedings, issued an injunction prohibiting the strike committee from holding the strike pending adjudication of the employer’s claim. 19. On the same day AeroSvit’s management handed over a copy of the injunction to the trade union’s representatives. 20. On 30 September 2011 the company’s management withdrew its earlier claim from the Darnytskyy Court. 21. On 4 October 2011 the trade union challenged the Boryspil Court’s injunction of 29 September 2011 before the Kyiv Regional Court of Appeal (“the Court of Appeal”). It submitted, in particular, that the strike committee could not be a respondent in proceedings, since it was neither an individual nor a legal entity. Nor was it empowered to act in courts on behalf of the employees who had decided to go on strike. 22. On 5 October 2011 the Court of Appeal dismissed the aforementioned appeal. 23. On 6 October 2011 the Boryspil Court found that the strike would be unlawful and banned it. The court relied on section 18 of the Transport Act, which prohibited strikes at transport enterprises if they affected passenger carriage. It noted that AeroSvit was an important passenger carrier operating over eighty international routes to thirty-three counties. Furthermore, given that one of the major tasks of the aircraft cabin crew was to ensure the safety of passengers, the court considered applicable section 24 of the Resolution of Labour Disputes Act, which prohibited strikes if they were likely to endanger human life or health. It also made a general reference to Article 44 of the Constitution. 24. The trade union appealed. It reiterated the arguments of its earlier appeal of 4 October 2011 concerning the standing of the strike committee. It also argued that the first-instance court had wrongly applied the Transport Act, when it should instead have applied the Resolution of Labour Disputes Act. 25. On 22 November and 19 December 2011 respectively the Kyiv Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the judgment of 6 October 2011. 26. On 20 January 2012 the Specialised Court’s final ruling was served on the strike committee.