CASE OF HRVATSKI LIJEČNIČKI SINDIKAT v. CROATIA

1. The case originated in an application (no. 36701/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Hrvatski liječnički sindikat ( Croatian Medical Union – hereinafter “the applicant union”), on 17 June 2009.
2. The applicant was represented by Mr S. Posavec, an advocate practising in Zagreb with the Law Firm Posavec, Rašica and Liszt d.o.o. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant union alleged that the decisions of the domestic courts prohibiting it from holding a strike had violated its freedom of association.
4. On 5 September 2011 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
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).
B. Civil proceedings for prohibition of the strike
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 1 3 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.”
C. Civil proceedings to declare the Annex null and void
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 3 6 below).
30. On 16 March 2011 the Constitutional Court dismissed a constitutional complaint lodged by the applicant union.
31. The relevant Articles of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) read as follows:
“Everyone shall be guaranteed the right to freedom of association for the protection of their common interests or for the promotion of social, economic, political, national, cultural and other convictions and aims. For this purpose, anyone may freely form trade unions and other associations, join them or leave them, in accordance with the law.”
“In order to protect their economic and social interests, all employees shall have the right to form trade unions and to freely join them or leave them.”
“The right to strike shall be guaranteed.
The right to strike may be restricted in the armed forces, the police, the civil service and public services specified by law.”
32. The relevant provisions of the Labour Act of 1995 ( Zakon o radu, Official Gazette no. 38/95 with subsequent amendments ), which was in force between 1 January 1996 and 1 January 2010, at the material time provided as follows:
Trade unions ’ collective bargaining committee
“ If more than one trade union ... exists in the sector in respect of which a collective agreement is to be concluded, the employer ... may negotiate a collective agreement only with a bargaining committee composed of representatives of those trade unions.”
Duty to comply in good faith with obligations arising from a collective agreement
“(1) The parties to a collective agreement and persons to whom it applies shall comply with its provisions in good faith.
(2) An injured party or a person to whom a collective agreement applies may claim compensation for the damage sustained as a result of non-compliance with the obligations arising from it.”
Judicial protection of the rights arising from a collective agreement
“A party to a collective agreement may seek judicial protection of the rights arising from such an agreement by bringing an action in the competent court.”
“Trade unions and their higher-level associations have the right to call and undertake a strike in order to protect and promote the economic and social interests of their members or on the ground of non-payment of salary ... within thirty days of it becoming due.”
33. Under the case-law of the Croatian courts, a strike is allowed only if its aim is the conclusion or revision of a collective agreement. By converse implication, a strike is illegal if a collective agreement exists. That is so because in such a situation there is an obligation to maintain social peace, which prohibits the calling of a strike in relation to matters that are already governed by a collective agreement. The only exception to that rule is the non-payment of salary, on which ground, as of 10 March 2001 when the 2001 Amendments to the Labour Act entered into force, trade unions may organise a strike. In case no. Gž-4/1996 the Supreme Court interpreted section 210(1) of the Labour Act (see the preceding paragraph) in the following terms :
“ In the Supreme Court ’ s view – having regard to section 210(1) ... of the Labour Act – a strike is lawful only in industrial disputes arising from a conflict of interests, [that is, in disputes over issues] that are not legally regulated but may be regulated by a collective agreement. A strike is therefore a lawful means of industrial action if its purpose is to meet [workers ’ ] demands [ as regards matters] that may be subject to a collective agreement. Even though the legislator does not explicitly exclude that a strike on issues which are legally regulated ... and thus susceptible to judicial or arbitral adjudication, may be lawful, the above legal view follows from the textual interpretation of section 210 (1) of the Labour Act and in connection with [some other] provisions of the same Act. By using the phrase ‘ to protect and promote the economic and social interests ’, the legislator clearly excluded the enforcement of employment-related rights (legal disputes) as a permissible ground for a strike. ... [Section 210(1)] ... indicates that means of pressure ([of which] a strike is the means of last resort ) serve to protect and promote workers ’ interests, but not their rights, which may only be protected during negotiations on the conclusion of collective agreements, and not in matters that are governed by such agreements. ”
34. In its judgment no. Gž 5/2000 of 13 April 2000 the Supreme Court held that the rule contained in section 210(1) of the Labour Act (see paragraph 32 above) was not mandatory, that is, that parties to a collective agreement could agree otherwise and, for example, provide that a strike was allowed even while the collective agreement was in force. In particular, the Supreme Court held as follows :
“ Section 210(1 ) of the Labour Act reads: ‘ Trade unions and their higher-level associations have the right to call and undertake a strike in order to protect and promote the economic and social interests of their members ’. The way in which this provision was drafted suggests that it is not mandatory ... There is no doubt that section 210(1) of the Labour Act entitles trade unions to strike in cases of collective disputes, that is, as regards issues that may be, but are not, regulated by a collective agreement. ... [T]he Labour Act has only provided for the protection of the basic rights of employees. [However], there are many other sources of labour law governing employment-related rights and duties. Collective agreements may regulate employment relations in a manner more favourable for employees ... The question therefore arises whether a strike undertaken on grounds provided for in the collective agreement is lawful.. .. If the employer, by signing a collective agreement, agreed that the trade union could undertake a strike even in cases of a breach of that agreement by the employer, then the strike cannot be considered unlawful only because it was undertaken on that ground. ... ”
35. The relevant provision of the Obligations Act of 1978 ( Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 29/78 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments ), which was in force between and 1 October 1978 and 31 December 2005, read as follows:
“(1) A contract that is contrary to the Constitution, mandatory rules or morals shall be null and void unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise.
(2) If the conclusion of a contract is prohibited only to one party, the contract shall remain valid, unless the law in a particular case provides otherwise, and the party that has breached the statutory prohibition shall bear the relevant consequences.”
D. Collective Agreement for the Health and Health Insurance Sector
36. The relevant clauses of the Collective Agreement for the Health and Health Insurance Sector ( Kolektivni ugovor za djelatnost zdravstva i zdravstvenog osiguranja, Official Gazette nos. 9/05, 156/09, 52/10 and 7/11 – “the Collective Agreement” or “the main Collective Agreement”), which was in force between 15 January 2005 (see paragraph 6 above) and 31 December 2010, read as follows:
“(1) During the validity of this Agreement trade unions shall not strike in respect of the matters regulated by this Agreement.
(2) The abstention from striking referred to in paragraph ( 1 ) of this clause does not exclude the right to strike in respect of all other unresolved issues or in the case of a dispute concerning the amendment or supplement to this Agreement.
(3) Trade unions shall have the right to organise a solidarity strike with other trade unions, provided that prior notice is given in accordance with the provisions of this Agreement.”
Amendments and supplements to the Agreement
“(1) Every party may propose amendments or supplements to this Agreement.
(2) Proposals on behalf of trade unions for amendments or supplements to this Agreement may be submitted by a bargaining committee.”
E. Collective Agreement for the Medical and Dentistry Sector
37. The relevant clauses of the Collective Agreement for the Medical and Dentistry Sector ( Strukovni kolektivni ugovor za liječničku i stomatološku djelatnost – “the Annex” ), which was declared null and void by a judgment of the Zagreb Municipal Court of 19 October 2006, that became final on 16 December 2008 (see paragraphs 26-28 above), read as follows:
“This agreement is to be considered a special part of the [main] Collective Agreement for the Health and Health Insurance Sector. In the event that a certain right is regulated differently by the [main] Collective Agreement for the Health and Health Insurance Sector, the law that is more favourable for the employee shall apply.”
“During the validity of this Agreement the Croatian Medical Union shall not strike in respect of matters regulated by this Agreement, unless they [that is, the obligations arising from the Annex] have not been complied with.
The prohibition of a strike referred to in paragraph ( 1 ) of this clause does not exclude the right to strike in respect of any other unresolved issue.”
“ Because of their great responsibility for the life and health of others, doctors [ and dentists] shall have the right to a corresponding salary supplement – the supplement for doctor ’ s responsibility.
Given the general situation in the economy the total increase of the basic salary on account of the doctor ’ s responsibility shall be achieved gradually in the period between 15 January 2005 and 1 January 2010 through annual 10% increment calculated by applying the chain index. As of 15 January 2005 the basic salary stipulated in the employment contract shall be increased by 10%. Each consecutive year, starting from 1 January, the basic salary shall be increased by 10% compared to the previous year, up until 1 January 2010.”
F. Decree on the salary supplement for doctors and dentists
38. On 5 April 2005 the Government of Croatia adopted the Decree on a salary supplement for doctors and dentists ( Uredba o dodatku na plaće doktora medicine i doktora stomatologije, Official Gazette no. 44 /05 of 5 April 2005 – “the Decree ”) which entered into force on the same day. The relevant provision of that Decree read as follows:
“Because of their great responsibility for the life and health of others, [doctors and dentists] shall have the right to a salary supplement ...
Salary supplement referred to in paragraph 1 of this section shall be paid in 2005 on a monthly basis and shall correspond to 10% of the basic salary.”
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
39. The applicant union complained that the decisions of the domestic courts prohibiting it from holding the strike planned for 11 April 2005 had breached its right to protect the interests of its members and had thus breached its trade union freedom guaranteed by Article 11 of the Convention, which reads as follows:
“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
40. The Government contested that argument.
41. The Government disputed the admissibility of the application by arguing that the applicant union had not had a locus standi and that, in any event, it had failed to exhaust domestic remedies.
1. Non-exhaustion of domestic remedies
42. The Government noted that the main ground for the strike which the applicant union had called for 11 April 2005 had been the alleged non-observance by the State of the obligations arising from the Annex (see paragraph 1 4 above). That being so, the Government argued, instead of resorting to strike action, the applicant union could have achieved the same goal by bringing a civil action against the State, either for damages, relying on section 191 of the Labour Act, or for the protection of rights arising from a collective agreement, relying on section 202 of the same Act (see paragraph 32 above), thereby protecting the interests of its members. However, the applicant union had not done so and had thus failed to exhaust domestic remedies.
43. The applicant union replied that they had complained before the Court of a violation of their freedom of association on account of the Zagreb County Court ’ s judgment of 8 April 2005 (see paragraph 19 above) prohibiting it from holding a strike on 11 April 2005 – against which they had appealed and lodged a constitutional complaint (see paragraphs 22 and 24 above) – and not on account of non-observance by the State of the obligations stemming from the Annex. Therefore, the violation complained of could not have been remedied by bringing the civil actions suggested by the Government.
44. For the Court, it is sufficient to note that the Annex was eventually declared null and void by the domestic courts (see paragraphs 26-30 above) and that therefore bringing either of the civil actions suggested by the Government would not have had any prospect of success. It follows that the Government ’ s non-exhaustion objection must be dismissed.
45. The Government submitted that the main reason why the domestic courts had declared the Annex null and void, with retrospective ( ex tunc ) effect, was that it had not been entered into by all the trade unions that had concluded the main Collective Agreement for the Health and Health Insurance Sector (see paragraphs 23 and 26-29 above). Given that the applicant union must have been aware of that fact before calling the strike, the Government concluded that the union must also have known that the Annex had been invalid from the outset and that therefore any industrial action in support of it had been unlawful and unnecessary. In particular, given that the main ground for the strike had been the alleged non-observance of the obligations arising from the Annex (see paragraph 1 4 above), the applicant union must have been aware that by organising and holding the strike it could not have forced the State to comply with the invalid Annex. Consequently, in the Government ’ s view, the applicant union could not have protected the interests of its members by holding the strike in question and thus could not complain of its prohibition by relying on Article 11 of the Convention.
46. The applicant union did not comment on that issue.
47. The Court finds that this inadmissibility objection by the Government is inextricably linked to the merits of the application. Therefore, to avoid prejudging the latter, the Court holds that it should be joined to the merits.
48. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Whether there was an interference with the applicant union ’ s freedom of association
49. The Government conceded that the Zagreb County Court ’ s judgment of 8 April 2005 (see paragraph 19 above) prohibiting the applicant union from holding a strike on 11 April 2005, which had been upheld by the Supreme Court ’ s judgment of 27 April 2005 (see paragraph 23 above), had constituted an interference with the applicant union ’ s freedom of association. The Court, having regard to its case-law according to which strike action is protected under Article 11 of the Convention ( see Enerji Yapı-Yol Sen v. Turkey, no. 68959/01, § 24, 21 April 2009, and National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 84, ECHR 2014 ), sees no reason to hold otherwise.
2. Whether the interference was justified
50. The Court must further examine whether that interference was justified in terms of Article 11 § 2 of the Convention, that is, whether it was in accordance with the law, pursued a legitimate aim and was “ necessary in a democratic society ” (see Enerji Yapı-Yol Sen, cited above, § 25; Karaçay v. Turkey, no. 6615/03, § 29, 27 March 2007; and Urcan and Others v. Turkey, no. 23018/04 and 10 other applications, § 26, 17 July 2008).
51. The Government argued that the interference had been provided for by law as it had been based on sections 186(1) and 210(1) of the Labour Act (see paragraph 32 above) and section 103 of the Obligations Act (see paragraph 35 above). In their view, those provisions had been clear and unambiguous and those Acts accessible as they had been published in the Official Gazette.
52. The Government further submitted that the interference in question had pursued legitimate aims of protecting the health and the legal order and that it had been “necessary in a democratic society”.
53. In particular, the applicant union had been able to exercise its trade union freedom and protect the interests of its members through collective bargaining which had resulted in the conclusion of the main Collective Agreement and its Annex. Once the domestic authorities had realised that the Annex was null and void, they had invited the applicant union to negotiate the conclusion of a new collective agreement/annex to replace the invalid Annex (see paragraphs 15 above). However, the applicant union had refused all efforts by the domestic authorities in that regard (see paragraph 16 above) and had responded with an illegal strike. Despite that the domestic authorities had unilaterally increased salaries of doctors and dentists in 2005 by 10% with a view to alleviating the situation thus created (see paragraph 17 and 38 above). That being so, and given that under the Court ’ s case-law the right to strike was not the only means to protect occupational interest of trade union members by trade union action (see Schmidt and Dahlström v. Sweden, 6 February 1976, § 36, Series A no. 21), the Government argued that the interference in the present case had been proportionate to the legitimate aim pursued. They therefore invited the Court to find that there had been no violation of Article 11 in the present case.
54. The applicant union argued that in deciding to prohibit the strike, the domestic courts had misapplied the domestic law. First, the courts had acted extra petitum, because they had prohibited the strike on the ground that the Annex had been invalid, that is, on a ground on which the State had not relied in its civil action of 5 April 2005 (see paragraphs 18 and 23 above). Secondly, the courts had focused on the name rather than the substance ( falsa nominatio non nocet ). Instead of examining whether the Annex could have remained valid as an independent collective agreement, they had simply held that the Annex had been a part of the main Collective Agreement for the Health and Health Insurance Sector and was thus null and void because it had not been entered into by all the trade unions that had concluded that agreement (see paragraph 23 above).
55. The applicant union further argued that the decisions of the domestic courts suggested that a strike was always unlawful in circumstances such as those in the present case where a trade union wished to strike in order to enforce a collective agreement and where the other party to that agreement had questioned its validity. In particular, the reasons adduced by the domestic courts for their decisions to prohibit the strike seemed to suggest that in such circumstances trade unions could not strike because either (a) the collective agreement was valid and section 210(1) of the Labour Act prohibited strikes in respect of matters already governed by a collective agreement (see paragraph 32 above), or (b) the collective agreement was invalid and for precisely that reason it could not be enforced by resorting to a strike. In the applicant union ’ s view, such an interpretation by the domestic courts could not be sustained as it completely excluded the right to strike in such circumstances.
56. The Court finds no reason to question that the Zagreb County Court ’ s judgment of 8 April 2005 prohibiting the applicant union from holding a strike on 11 April 2005 (see paragraph 19 above), which was upheld by the Supreme Court ’ s judgment of 27 April 2005 (see paragraph 23 above), had a legal basis in domestic law, namely sections 186(1) and 210(1) of the Labour Act (see paragraph 32 above) and section 103 of the Obligations Act (see paragraph 35 above). As to the applicant union ’ s argument to the contrary (see paragraph 54 above), the Court reiterates that its power to review compliance with domestic law is limited and that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Federation of Offshore Workers ’ Trade Unions and Others v. Norway (dec.), no. 38190/97, 27 June 2002 ). The Court is therefore satisfied that the interference in the present case was “prescribed by law”, as required by Article 11 § 2 of the Convention.
57. The Court further reiterates that the domestic courts ’ judgments to prohibit the strike were based on the finding that the Annex was null and void because it had not been entered into by all the trade unions that had concluded the main Collective Agreement for the Health and Health Insurance Sector (see paragraphs 23 and 27-29 above). Their judgments aimed to uphold the principle of parity in collective bargaining enshrined in section 186(1) of the Labour Act (see paragraph 32 above) and thus protect the rights of those trade unions. It follows that the interference with the applicant union ’ s freedom of association in the present case pursued the legitimate aim of protecting the rights of others.
58. As regards the proportionality, the Court first notes that neither the Zagreb County Court nor the Supreme Court found it necessary to examine whether the applicant union was allowed to strike to demand the conclusion of a (new) collective agreement for the medical and dentistry sector. The Supreme Court held so, even though in the civil proceedings for prohibition of the strike, where the validity of the Annex was a preliminary issue, that court had itself found the Annex null and void. In those circumstances it was of particular importance to address that third ground for the strike (see paragraph 14 above) because under the domestic law trade unions were allowed to strike in the absence of a collective agreement (see paragraphs 32-33 above). Instead, the domestic courts considered that they were not required to do so because the applicant union ’ s representative had allegedly stated during the proceedings that it had been listed as subsidiary in case in the meantime the Annex was declared invalid in the parallel civil proceedings for declaring it null and void. In the view of those courts, that condition had not been fulfilled at the time (see paragraphs 19 and 23 above).
59. The effect of that approach was that the applicant union was not entitled to hold a strike in the period between 11 April 2005, as the date of the intended strike, and 16 December 2008, as the date on which the judgment of the Zagreb Municipal Court declaring the Annex null and void in the parallel civil proceedings became final (see paragraph 28 above). In the absence of any exceptional circumstances, the Court finds it difficult to accept that upholding the principle of parity in collective bargaining is a legitimate aim (see paragraph 57 above) capable to justify depriving a trade union for three years and eight months of the most powerful instrument to protect occupational interests of its members. That is especially so in the present case where the applicant union was in that period not allowed to strike to pressure the Government of Croatia to grant doctors and dentists the same level of employment-related rights the Government had already agreed upon in the Annex, which had been invalidated on formal grounds only. It follows that the interference in question cannot be regarded as proportionate to the legitimate aim it sought to achieve. This conclusion is not called into question by the Government ’ s argument (see paragraph 53 above) that the domestic authorities unilaterally increased by 10% salaries of doctors and dentists in 2005. That is so because the Annex provided for progressive increase of their salaries by 10% every year in the period between January 2005 and January 2010 (see clause 57 of the Annex in paragraph 37 above).
60. The foregoing considerations are sufficient to enable the Court to find that there has been a violation of Article 11 of the Convention in the present case.
61. In view of this conclusion, the Government ’ s inadmissibility objection as to the lack of locus standi (see paragraph 45 above), must be dismissed.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
62. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
63. The applicant union claimed 100,000 euros (EUR) in respect non ‑ pecuniary damage.
64. The Government contested that claim.
65. The Court considers that a finding of a violation of Article 11 of the Convention constitutes in itself sufficient just satisfaction in the circumstances for any non-pecuniary damage the applicant union might have sustained.
66. The applicant union also claimed a total of EUR 10,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.
67. The Government contested that claim.
68. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3, 250, covering costs under all heads, plus any tax that may be chargeable to the applicant union.
69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government ’ s objection as to the lack of locus standi and rejects it;