DISSENTING OPINION OF JUDGE DEDOV

1 . With all due respect, I cannot agree with the conclusions of my colleagues. The present case reflects the most serious problem of the Court: when it presumes that the domestic authorities are not aware of European standards, it takes on an enlightenment role. This pedagogical function does not have anything to do with the concepts of the margin of appreciation or the principle of subsidiarity. The Court imposes certain standards in very controversial circumstances, and what is more important, the standards themselves are not clear because the Court occasionally invents them.

2 . In the case of Hirst v. the United Kingdom (no. 2) (no. 74025/01, 6 October 2005), the Court found that the blanket ban on prisoners ’ participation in elections was contrary to the Convention. Notwithstanding widespread criticism, I agree with that conclusion because in the modern world a blanket ban or a complete ban (the term used in the present case) is an outdated legal approach. Therefore, a methodology based on the principle of proportionality should prevail.

3 . Precisely with the help of the proportionality principle, the Hirst judgment contains another positive element – the gravity of the offence - which would be very helpful for the domestic authorities in order to strike a clear balance between private and public interests. The Court ’ s own position regarding the protection of prisoners ’ voting rights (although individual and fundamental) was not absolute, and the Court has demonstrated its respect for the margin of appreciation of the member State. But, surprisingly, after the Hirst judgment there was the case of Söyler v Turkey (no. 29411/07, 17 September 2013), where the Court refused to confirm the criterion used by the domestic authorities, namely whether or not the offence was committed intentionally, even though that criterion is usually applied in the domain of criminal law to assess the aggravating circumstances of a crime and it therefore influences the assessment of the gravity and nature of the offence in question.

4 . In other cases, including cases against Russia , the Court has demonstrated much less care about the balancing of individual rights and public interests. In the case of Bayev and Others v. Russia (nos. 67667/09, 44092/12 and 56717/12, 20 June 2017), the Court endorsed the protection of sexual minorities to publicly express their opinion on sex-related issues in front of educational facilities, without taking into account the rights and freedoms of other groups of vulnerable persons like the parents and their children. By contrast, for the purposes of the balancing test, the domestic authorities had taken the prevailing interests of others into account when they imposed the administrative penalty (except in the case of the third applicant).

5 . In the case of Orlovskaya Iskra v. Russia (no. 42911/08, 21 February 2017), the Court reminded the authorities that they were obliged to respect the role of the mass media during an election campaign, notwithstanding the fact that the impugned article neither provided neutral information to the public nor complied with the ethical standards of journalism. The article simply defamed and insulted an official who was the local leader of a political party at that time. The Court proposed that the individual could bring a defamation case against the applicant newspaper, but this would not release the authorities from protecting the newspaper. Thus, the Court disregarded the balancing test. Again, by contrast, for the purposes of the balancing test, the domestic authorities had taken the insulting nature of the publication and the lack of neutrality (“agitation against the candidate”) into account when they imposed the administrative penalty.

6 . In sum, the problems of the Court are of a dual nature: the Court assumes that the domestic authorities could not and/or did not apply the Convention standards because they were prevented from doing so by statutory provisions, even if the domestic courts had in fact struck a balance in order to protect the prevailing public interest within the scope of a legitimate aim. In such a situation (when the rights and freedoms of others are at stake) the Court does not always provide a clear criterion for the proportionality/balancing test. In the present case, in my view, the Court ’ s assessment involves both problems, because the desire of the majority to impose general standards regarding the right to strike is in contradiction with a concrete situation. I must say that finding a violation of the Convention for pedagogical purposes is quite humiliating for the national authorities. The Court should be prudent, as much as possible, to be sure that the applicant is the only victim and that there are no other persons who could be regarded as victims as a result of his or her actions when the applicant exercised his fundamental rights and freedoms.

7 . In the present case the Court criticises a “complete ban on the right to strike in respect of certain categories of railway workers” (paragraph 73 of the judgment). But if the ban concerns only certain categories of workers, then it is not complete for the trade union. Therefore, the railway union was not prohibited from calling the strike in principle. The majority ’ s position is that the applicant ’ s right was violated. However, the majority had to make a link between the applicant ’ s right to associate and the union ’ s right to strike. As a result, the Court has concluded that since the applicant did not have an opportunity to strike, then his freedom of association was restricted. Indeed, this is a maximalist position because freedom of association does not cover every collective action.

8 . For example, in the case of the National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, 8 April 2014, the “RMT” judgment), concerning the ban on secondary strike action, the Court found no violation because the ban was aimed at protecting the rights and freedoms of others potentially affected by the disruption, including the public. For that reason the Court considered that it did not have to decide whether the right to strike itself should be viewed as an essential element of freedom of association. Among other authorities, it is worth mentioning the judgment in the case of Hrvatski Lijecnicki Sindikat v. Croatia , where the Court concluded that strike action by medical personnel was protected only when a collective agreement was null and void. In the case of Trade union in the factory “ 4th November ” v. the former Yugoslav Republic of Macedonia ((decision) , no. 15557/10, 1 October 2015), the Court concluded that without peaceful negotiations, mediation and arbitration, which were obligatory before the strike, the latter was considered unlawful and the application was inadmissible. The above judgments confirm that, contrary to the conclusion of the Court in the present case, a strike is actually the most severe form of pressure which could be organised by employees against their employer; its application should be limited, so other more peaceful safeguards are preferable in this domain of economic activity, especially if it concerns the provision of public services or public safety.

9 . In the present case the Court prefers not to discuss the legitimate aim, and it goes directly to the conclusion that the interference was disproportionate. The Court does not propose any criterion of proportionality; it prefers not to discuss the negative consequences of the strike, but to link the proportionality with the severity of punishment. I believe that such a methodology is wrong. The principal assessment should concentrate on the balancing test, and the severity issue must be used in exceptional cases. The Court concluded that dismissal was the most severe penalty (paragraph 83 of the judgment), but a refusal to exercise duties on railway transport which leads to damage to property or health is punished under Russian criminal law (Article 263 of the Criminal Code); a breach of the safety rules may lead to an administrative penalty under Article 11.15.1 of the Russian Code on Administrative Offences. Thus it was not the most severe punishment. I believe that the authorities did not overstep their margin of appreciation, because the dismissal was applied by national courts not only for the refusal to exercise the duties, but because the refusal led to negative consequences for the public.

10 . What is more important is the balancing test. In paragraph 82 of the judgment the Court stresses that when the applicant challenged his dismissal before the national courts, they had to confine their analysis to formal compliance with the relevant Russian laws and consequently could not balance the applicant ’ s freedom of association against competing public interests. I will argue that this statement was not based on the facts.

11 . According to the case file documents, the trade union decided that all employees including locomotive drivers should participate in the strike, and it was not the applicant ’ s own initiative. So it was the union which breached the law. The union, nonetheless, defended its leading role in the strike during further proceedings involving the administration and the parliamentary committee. The union did not agree with the decision to dismiss the applicant. The Court refers to the fact that the lawfulness of the strike was not challenged in the domestic courts, or before any other independent authority (see paragraph 81 of the judgment), but this does not clarify whether it was lawful or not. I have the opposite impression from the case file documents. It is obvious, and it was stated by the domestic courts in their decisions within the dismissal proceedings, that the trade union declared the strike within a period shorter than that prescribed by the Labour Code and without preliminary recourse to conciliation or arbitration. Thus the strike could have been considered unlawful for other reasons. There was “another independent authority”, namely the Working group of the State Duma on the resolution and analysis of collective labour conflicts. The group concluded that the strike was unlawful but the union shifted the burden of responsibility to its members.

12 . The Court did not establish any proportionality criterion in the present case. I will try to do that now. Obviously, the staff of any means of transportation including underground, aviation or railway transport could be free to organise a strike, but some precautions should be taken: (1) advance notice is needed if the working regime is to be changed (cancellation of flights, etc.); (2) a transport strike cannot cancel all services – some means of transport (the most vital) should continue.

13 . In the present case the majority refer to a minimum service that was supposed to be provided during the strike, but that service did not bear any relation to actual transportation because no locomotive driver appeared at work during the strike period. The majority mention that the Government did not dispute the existence of a minimum service, not having made any submissions in this regard (see paragraph 7 of the judgment). This looks like a cat and mouse game: the Government will always lose because of the uncertainty and unpredictability of the Court ’ s reaction to their submissions. This is not acceptable in international relations. If the Court has not received the information which is critical for the decision, it should invite the parties to provide such information. The Court ’ s procedure should not be equal to domestic adversary proceedings, where the result heavily depends on the quality of legal advice. The trade union committee ’ s decision referred to minimum services during the strike on public transport, as set out in the Order of the Ministry of Transport, no. 12ts of 27 March 2003. Such a document does not exist. The issue is regulated by Order no. 197 of 7 October 2003. At the time of the event the Order did not contain any provisions regarding railway transport. Such provisions were included in the Order in 2009, i.e. after the impugned events. Under the applicable version, the safety and security concerns requiring a minimum service did not actually include transportation, only the maintenance of the railway infrastructure. It is not clear how to interpret the Order: whether after the consultations with the members of parliament, the Ministry of Transport positively reacted to the 2008 strike and in fact allowed the locomotive drivers to participate in a strike; or whether the minimum of safety services meant that some of the employees in charge, other than the locomotive drivers, could not participate in a strike, and the locomotive drivers were still banned from striking under the separate rules. Obviously, this issue should be clarified by the Government.

14 . Let us return to the circumstances of the present case. The strike happened three days after the decision was taken. The Prosecutor ’ s investigation came to the conclusion that the administration was not notified about the strike. The decision to declare the strike does not directly refer to the participation of locomotive drivers, so I conclude that the administration was not actually informed that those drivers would participate in the strike and therefore the administration had to cancel the trains or to find alternatives during the strike, not before it. Owing to such a short period of time, it is obvious that the administration was unable to react. The passengers were not duly informed. Those deficiencies were aggravated by the fact that the strike was conducted in the morning. This period is vital for those who live in the suburbs of Moscow. Thousands of people use the trains to get to work. The railway system is also popular for travel within the territory of Moscow, at least for the first 4-5 stations, therefore Muscovites also use the trains for business purposes in the morning. It is worth mentioning that the majority of passengers do not have cars, so the train is the only means of transport for hundreds of thousands of people who live in Moscow or Kaluga oblasts and other regions to get to workplaces situated in Moscow.

15 . The domestic courts did the balancing test taking into account the violation of the rights and freedoms of others as a result of the strike. The District Court clearly refers to the analysis of the proportionality of the restriction of the applicant ’ s rights within the dismissal proceedings in its decision. The domestic courts analysed the circumstances of the strike, noting that the platforms were overcrowded and that this created a risk for life; the trains were cancelled or delayed. They stated that other safeguards like conciliation and arbitration set out in the Russian Labour Code were obligatory for the trade union to exhaust before the strike. The administration did not have any chance to use them, because the strike happened in a very short period of time. The courts found that neither the union nor the applicant took any measures to ensure that the nuisance for civil society would be limited to a minimum. The prosecutor made similar conclusions which served as a basis for the domestic courts ’ analysis of the proportionality.

16 . Being badly organised, the action of the applicant and the union led to the disorder. Moreover, the applicant knew that his participation in the strike could come into conflict with the rights and freedoms of others. But he failed to demonstrate to domestic courts and to the Court that he personally or the union had taken the necessary measures, precautions and safeguards before the strike to minimise the negative consequences for the public.

17 . It is very important that the Russian Constitutional Court referred to the rights and freedoms of others and applied the same international documents (see paragraph 18 of the judgment). The right to strike is not absolute, and it can be limited for the purposes set out in Article 11 § 2 of the Convention. If the legitimate aim relates to the public safety and essential public services then the protection of rights and freedoms of others (freedom of movement) is at stake and the State should thus be afforded a wide margin of appreciation. In the present case, in contrast, the Court has shifted to the general principle regarding the existence of a “pressing social need”. Without taking into account the specificity of the present case, the Court provides that the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it (see paragraph 67 of the judgment). However, the Court used a different approach in other cases when it took into account similar circumstances. For example, in the case of Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, 15 November 2016, the Court stated as follows:

“179. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52 with further references, ECHR 2006-VI; Shelley v. the United Kingdom (dec.), no. 23800/06; 4 January 2008; and Hristozov , cited above, § 119).”

18 . The Court took the view that the margin of appreciation to be afforded to the national authorities in that case had to be a wide one, and that the State had not overstepped the margin of appreciation afforded to it as the prohibition of assistance by a health professional during a home birth had struck a fair balance between, on the one hand, the applicants ’ right to respect for their private life under Article 8 and, on the other, the interest of the State in protecting the health and safety of the child during and after delivery and that of the mother (see §§ 184-90 of the Dubská judgment). In the present case, the applicant ’ s right to strike is in conflict with the freedom of movement of those who need railway transport to get to work in the morning and to get back home in the evening. The balancing of the conflicting rights inevitably leads to the limitation of the right to strike. The trade union failed to make the balancing itself, and it did not provide any chance for the administration to do so.

19 . In the “RMT” judgment (cited above) regarding secondary strike action, the Court stressed that the breadth of the margin in cases such as the applicant ’ s had to be assessed in the light of relevant factors such as the nature and extent of the impugned restriction, the aim pursued and the competing rights and interests of other individuals who were liable to suffer as a result of the unrestricted exercise of that right. The Court concluded that the margin should be wide. The Court also concluded that in their assessment of how the broader public interest would be best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities had relied on reasons that were both relevant and sufficient for the purposes of Article 11.

20 . The Court also observed that, although the legislative history of the United Kingdom pointed to the existence of conceivable alternatives to the ban, that was not decisive of the matter. For the question was not whether less restrictive rules should have been adopted or whether the State could establish that, without the prohibition, the legitimate aim would not have been achieved. It was rather whether, in adopting the general measure it did, the legislature had acted within the margin of app reciation afforded to it (see § 103 of the “RMT” judgment, cited above). I truly regret that in the present case the Court refused to make such an analysis and draw such a conclusion.