Veniamin Tymoshenko and Others v. Ukraine

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European Convention on Human Rights

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In this case, the applicants' employer - an airline - had been directed by the Labour Arbitration Court to comply with the demands put forward by its cabin crew on issues such as remuneration and safety. The airline refused to comply and the cabin crew announced that it intended to embark on industrial action, in response to which the airline sought and obtained a ban of the industrial action through a national court on the basis that the strike would be unlawful. The European Court of Human Rights (ECtHR) found the ban to be a violation of the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights (ECHR).

The national court relied notably on the Transport Act, which prohibits strikes at transport enterprises if they affect the transportation of passengers and on the Resolution of Labour Disputes Act, which prohibits strikes if they are likely to endanger human life or health.

The ECtHR, recalling its ruling in National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 84, 8 April 2014, confirmed that strike action is clearly protected by Article 11 and that an interference would constitute a breach of Article 11 ECHR unless it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” for the achievement of those aims. [Paras 78 - 79].

Furthermore, reiterating the findings in Maestri v. Italy [GC], no. 39748/98, § 30, the ECtHR declared that the law allowing for interference with Article 11 should also be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. [Para. 80].

The ECtHR concluded that the interference with the applicants’ rights under Article 11 of the ECHR was not based on sufficiently clear and foreseeable legislation and that accordingly there had been a violation of the right to freedom of assembly and association. [Paras 85 - 86].

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