DISSENTING OPINION OF JUDGE MYJER JOINED BY JUDGE GYULUMYAN

1. It is not uncommon for members of a trade union and representatives of an employer’s organisation – when expressing their views regarding their respective opponents – to use expressions lacking in subtlety and finesse.

That seems to have been what happened in the present case. In a reaction to what had been shouted and otherwise expressed at a public meeting organised by the Trade Union of the Police, the Slovak Minister of the Interior – the Minister responsible for the policemen concerned – made several public statements in which he made it clear that any policeman acting contrary to the ethical code of the police would be dismissed. And he also took action accordingly.

The applicants complain that the Minister, in expressing himself as he did, went too far and violated Article 11 of the Convention.

The statements were “bold and, from a certain point of view, capable of creating an atmosphere of fear”, in the measured language of the Slovak Constitutional Court. But, in the Constitutional Court’s view, their nature and intensity were not such as to amount to a breach of the trade union’s rights (see paragraph 18). The majority of the Chamber “accept that the applicants were intimidated by the Minister’s statements, a situation which could have thus had a chilling effect and discouraged them from pursuing activities” within the trade union (paragraph 60). But they go on to conclude that the means used were not disproportionate (paragraph 75).

2. I do not agree with either conclusion. I am convinced that the Minister went beyond acceptable limits in expressing himself thus. He went so far as to threaten the (members of the) Trade Union of the Police to make them keep silent or risk being dismissed. In my view this is an infringement of Article 11 of the Convention

3. The facts in relation to the trade union public meeting are described in paragraph 6. Three aspects seem to have caused the anger of the Minister:

– the president of the Union, Mr Litva, had, as the Minister put it, lied during the meeting by calling into question the official position “that the Government had money at their disposal for increasing policemen’s salaries” (see paragraph 12);

– the participants had spontaneously shouted – inter alia – that the Government should step down;

– one of the banners displayed by the participants had read: “If the State doesn’t pay a policeman, the mafia will do so with pleasure.”

4. The Minister’s reaction is described in paragraphs 7-12. In the days following the trade union meeting he made various forceful statements and took some measures. And although the complaint is only admissible as far as the Minister’s statements are concerned, the fact remains that it is clear that those statements were more than just a first political reaction phrased in admittedly strong terms. The very fact that he took immediate action of a punitive nature shows at the very least that the Minister’s threats deserved to be taken seriously.

In this respect it is not without importance that even after the Minister had had some more time, and even some days, to rethink his first reaction, he repeated what he had said earlier.

5. I leave open the answer to the question whether a trade union or its leaders can be held responsible if participants in a meeting spontaneously start shouting certain slogans, or whether they can only be held responsible if they did not do their best to stop the participants from expressing themselves in an improper way.

I am, however, prepared to accept that the participants who publicly started to shout that the Government should step down transgressed the limits of what can be considered acceptable for police personnel.

I shall not comment on the Minister’s rather remarkable statement that the president of the trade union lied when suggesting that the Government did not have money at its disposal for increasing policemen’s salaries.

As far as the statement on the banner is concerned I have only this to say: I am not in a position to express an opinion on the adequacy or otherwise of the salaries paid to Slovak police personnel. I would, however, stress that it is generally acknowledged that policemen should receive an adequate salary, if only to prevent them from succumbing to the temptation – in order to meet their and their families’ minimum daily basic needs – to supplement their salary with other – illegal – forms of income. Indeed, this Court has handled many cases in which the underlying facts reflected corruption on the part of underpaid Government authorities. I can accept that the Trade Union of the Police wished to convey the following message: if the Government fails to provide police personnel with an adequate living standard, and if the police continue to perceive themselves as underpaid, then there is a real danger that ultimately some policemen may be susceptible to offers of additional or alternative income. I cite as a recent authority the booklet by the former Council of Europe Commissioner on Human Rights, Thomas Hammerberg, Human Rights in Europe: no grounds for complacency (Council of Europe 2011) and his comments under the heading Corruption undermines justice (pp. 228-33).

Trade union banners will seldom win prizes for the diplomatic and balanced expression of the message they intend to convey. The message has to be short and catchy. A banner tries to explain as briefly and expressively as possible the perceived problem and preferred solution thereto, in the hope of influencing people’s views. Exaggeration or even the use of phrases that may shock, offend and disturb outsiders are not uncommon in that context.

6. I agree with the relevant principles as set out in paragraphs 53 ‑ 57 of the judgment.

The duty of loyalty to one’s employer takes on a special significance for civil servants, including the police. It is not without significance that Article 11 § 2 expressly states: “This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members ... of the police...”. However, this trade union was not subject to any unlawful restrictions relevant to the present case.

Equally, I am prepared to accept that the Slovak Ethical Code of the Police states that, when expressing their views in public, policemen should act in an impartial and reserved manner so that they do not give rise to doubts about their impartiality (see paragraph 32).

7. I have no difficulty agreeing that the Minister of the Interior was entitled to react with force and determination to the publicly shouted calls for the resignation of the Government. Even so, the fact that he, as the Minister responsible for the police, repeatedly indicated – even when the crisis was no longer at its height – that he would dismiss anyone who “acted contrary to the ethical code of the police again”, that the trade union’s representatives had “lost credibility”, that he was “not obliged to negotiate with those representatives”, and that he had actually imposed a sanction on the president of the trade union for having “misled ... the public, those policemen whom he had lured out to the square”‘ in that he had “called into question [the fact] that the Government had money at their disposal for increasing policemen’s salaries”, was indeed capable of creating an atmosphere of fear, was indeed intimidating, and did indeed create a situation which could have had a chilling effect and discouraged trade union members from pursuing activities within the trade union. That is reinforced by the fact that the Minister – by imposing a sanction on the president of the trade union – demonstrated that his reaction was no empty threat.

By acting to muzzle the trade union’s leadership he undermined the very essence of the trade union’s rights – a trade union that, let us remember, was itself entirely lawful. That cannot be right.