JOINT DISSENTING OPINION OF JUDGES LEMMENS AND SERGHIDES

1. To our regret we are unable to join the majority. In our opinion, there has been a violation of Article 11 of the Convention.

2. This case concerns an order to expel the trade union formed by a number of inmates in a high-security prison in Yakutsk from the applicant federation of trade unions. The order was issued by the Yakutsk Town Court, on the basis of section 19 of the Public Associations Act 1995. That provision prevents detainees from founding or being members of an association.

We will concentrate on whether the expulsion order can be considered “necessary in a democratic society”.

3. The majority start their analysis by recalling two principles:

- prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty (see paragraph 39 of the judgment); indeed, as the Court has stated, “the Convention cannot stop at the prison gate” (see Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 836, 25 July 2013, and Klibisz v. Poland , no. 2235/02, § 354, 4 October 2016);

- restrictions on trade-union freedom must be based on “convincing and compelling reasons” (see paragraph 41 of the judgment, referring to Demir and Baykara v. Turkey [GC], no. 34503/97, § 119, ECHR 2008).

We also adhere to these principles.

4. The majority basically argue that prison work cannot be equated with ordinary employment (see paragraph 44 of the judgment), and that while it may be necessary in the future to extend trade-union freedom to working inmates (see paragraph 45), the time is currently not yet ripe to interpret Article 11 of the Convention in such a manner (see paragraph 46).

We find this reasoning to be based more on policy grounds than on legal grounds. Moreover, we find that the conclusion reached by the majority cannot be justified on legal grounds.

5. Of course, we are not blind to the realities of prison life. Allowing prisoners to join a trade union (or any association, for that matter) and to develop trade-union activities could lead to situations contrary to prison discipline, and even give rise to disorder. We have no difficulty in accepting that the competent authorities are entitled to regulate the activities of associations formed by inmates. It is, for instance, perfectly legitimate to prohibit collective actions that might seriously jeopardise security or order in prisons.

But that is not what this case is about. The impugned interference concerns a total ban on trade unions in a prison context. As the Court has held, the permissible exceptions to the right to freedom of association must be narrowly interpreted (see, among other authorities, Sidiropoulos and Others v. Geece , no. 26695/95, § 38, Reports 1998 ‑ IV), so as to give practical and effective protection to that freedom (see Demir and Baykara , cited above, § 146, and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway , no. 45487/17, § 96, 10 June 2021). A total ban goes against this principle of effectiveness (for an application, see Demir and Baykara , cited above, §§ 125-127).

6. We are unable to identity the “convincing and compelling reasons” that could justify such a total ban. We do not even see any reasons that could be considered (merely) sufficient to justify a total ban.

Any restriction on freedom of association, including trade-union freedom, and even in a prison context, must strike a fair balance between the rights of the individuals concerned and the general interest pursued by the public authorities. In our opinion, it has not been demonstrated in the present case that the balance struck was a fair one.

7. With regard to the rights of the inmates concerned, we consider that, as persons in custody, they are in a vulnerable position (see Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII), and that this applies to their working conditions. As chairman of a human-rights board, the president of the applicant federation had indicated, after several visits to the prison, “that the administration underpaid its inmates, overworked them, withheld their disability benefits, neglected workplace safety and covered up accidents” (see paragraph 4 of the judgment). We cannot express an opinion on whether or not these accusations were well-founded. It suffices to note that such complaints are not unusual and that they can be arguable. Indeed, the Court has been confronted with prison-work related complaints from inmates in other prisons (see, among other cases, Georgiev v. Former Yugoslav Republic of Macedonia , no. 26984/05, §§ 69-75, 19 April 2012, and Niculescu v. Romania , no. 25333/03, §§ 65-73, 25 June 2013). The European Committee of Social Rights has also drawn attention to the need for a proper regulation of prisoners’ working conditions, particularly with respect to work carried out for employers other than the prison service itself (see Conclusions 2012 , General Introduction, Statement of Interpretation on Article 1 § 2; included in the Digest of the case-law of the European Committee of Social Rights , 2018, p. 61, http://rm.coe.int/0900001680939f80 ).

There is therefore, in our opinion, room for protection of the social rights of working inmates. Given their vulnerable position, prisoners may even have a strong interest in securing respect for their right to join an association that defends their individual and collective rights. The Court has held that trade-union freedom can be “an essential element of social dialogue between workers and employers, and hence an important tool in achieving social justice and harmony” (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 130, ECHR 2013 (extracts), quoted in paragraph 40 of the present judgment). There is no reason why this would not apply, as a matter of principle, in a prison context. Even if the dialogue engaged will be different when there is a special relationship of authority, as in a prison situation, it should not be excluded as a means of achieving or promoting “social justice and harmony”.

8. With regard to the general interest pursued by the public authorities, in our opinion the mere fact that working conditions for prisoners are different to those for ordinary workers (see Stummer v. Austria [GC], no. 37452/02, § 93, ECHR 2011, cited in paragraph 44 of the present judgment), cannot in itself be a sufficient reason for banning prisoners from forming or joining a trade union. As acknowledged by the majority, Article 11 § 2 of the Convention does not exclude any occupational group from the scope of that provision (see paragraph 29 of the judgment); at most, the national authorities are entitled to impose “lawful restrictions” on certain of their employees in accordance with Article 11 § 2 (see Sindicatul “Păstorul cel Bun” , cited above, § 145; Manole and “Romanian Farmers Direct” v. Romania , no. 46551/06, § 62, 16 June 2015; and Ognevenko v. Russia , no. 44873/09, § 59, 20 November 2018).

It is not clear whether the Government invoke any of the particular aims listed in Article 11 § 2 of the Convention (see paragraph 35). Be that as it may, the majority accept the prevention of crime and disorder as justification for the ban (see paragraph 38]). However, a general reference to the need for prevention of crime and disorder, without a concrete assessment of the risks posed by trade-union activities in the relevant prison, does not allow conclusions to be drawn regarding the weight to be attached to that general interest. We further note that by imposing a general and indiscriminate ban on trade unions for detained persons, section 19 of the Public Associations Act 1995 does not allow for any assessment of whether a less drastic measure could achieve the same legitimate aim of preventing crime or disorder (compare Roman Zakharov v. Russia [GC], no. 47143/06, § 260, ECHR 2015).

9. We are not therefore convinced that a fair balance has been struck. In order for the Court to come to the conclusion that the impugned ban was “necessary”, a more precise demonstration would have to be made by the Government. We consider that the latter failed to satisfy the burden of providing sufficient justification.

10. The majority seem to be well aware that the interference complained of is at odds with the applicant federation’s right to freedom of association. However, they rely on a perceived lack of consensus among the member States of the Council of Europe [1] to defer the finding of a violation of Article 11 to a later date (see paragraphs 45-46 of the judgment).

It is ironic that they concurrently refer to the fact that Convention rights are intended to be practical and effective, and that the Convention is a living instrument (see paragraph 45). We agree with linking the living-instrument doctrine to the principle of effectiveness. To our regret, however, we cannot agree with the majority’s next step, which seems in our opinion to be quite the opposite of what is entailed by the said principle and doctrine: in reality, the majority reduce trade-union freedom to a theoretical and illusory right for a specific group of workers, and reduce Article 11 of the Convention, for these workers, to a sleeping beauty, asleep until it may be awakened by a substantial group of member States.

We find this approach too restrictive. We can of course understand very clearly the policy reasons behind the majority’s approach. But there is a point where the law (the Convention) is stronger than policy. Dura lex sed lex . Where a law, a practice or a decision is not compatible with the Convention, or where the Government do not at least provide the necessary justification, it is for the Court to assume its responsibilities and to rule to that effect. The emergence of a consensus among the member States of the Council of Europe may act as an incentive for the Court to adopt a dynamic interpretation of the Convention, but the lack of such a consensus - or the perceived lack of a consensus [2] - should not act as an obstacle to an interpretation, dynamic or not, that is warranted on other grounds.

11. In conclusion, it is clear that the domestic authorities enjoy a margin of appreciation with respect to the regulation of the exercise of trade-union freedom in prisons. They are entitled to restrict trade-union activities, provided that they can rely on relevant and sufficient reasons and that the restriction is not disproportionate. All that is beyond any doubt.

The majority conclude that the order to expel the union of the working inmates from the trade-union federation did not exceed the margin of appreciation available to the national authorities (see paragraph 47 of the judgment).

However, the judgment contains a warning that the matter is not settled once and for all.

While we appreciate that warning, we regret that the majority do not send a stronger message to the Russian authorities. We believe, on the basis of the elements in the file, that the necessity of a general and indiscriminate ban has not been demonstrated, and that Article 11 has therefore been violated.

[1] We will not discuss whether or not there is indeed a lack of consensus. We would, however, like to draw attention to the fact that only two States, the Czech Republic and the Slovak Republic, have an absolute ban on prisoners forming and joining trade unions (see paragraph 16 of the judgment). It seems to us that in most of the other States the situation with respect to the possibility of forming and joining trade unions is at best unclear, and we would have preferred the majority to be more cautious in their “interpretation” of the existing legal framework and practice (ibid.).

[2] See footnote 1.