FBK Legal on ECHR Decision to Find no Violation in Unionisation Restrictions for Russian Prisoners

Alexandra Gerasimova has commented for Attorney's Newspaper on a decision made by the ECHR confirming that it is not a violation that Russian prisoners cannot set up trade unions.

An inspection at Penal Colony No.7 in the Republic of Sakha (Yakutiya), Russia, revealed that its administration regularly violated inmates? rights. In February 2006, inmates of that colony decided to set up a trade union and join a regional trade-union federation. However, two months later as a result of changes in the legislation, convicts in Russia lost their rights to be founders or members of public associations.

Then the local prosecutor's office found the trade union set up by the inmates unlawful because prison work was a method of correction and not a professional activity, so the Public Associations Act did not apply to them. The Yakut Republican Trade-Union Federation did not expel the union from the federation citing the International Labour Organisation (ILO) Convention, which protected trade unions from government intrusion.

There were several court proceedings to challenge that decision. In the end, the Supreme Court of the Republic of Sakha upheld the expulsion of the union from the federation.

A representative of the Yakut Republican Trade-Union Federation applied to the ECHR claiming violation of articles 6 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms that guaranteed the right to a fair trial, and freedom of assembly and association. The Government of the Russian Federation argued that the complaint was inadmissible for five reasons. The ECHR considered the complaint and declared that there was no legislative ban on prisoners forming and joining trade unions in Russia, but the Court did not find any violation of article 11 of the Convention.

Alexandra Gerasimova says that the ECHR raised important legal issues, for example, about the application of the labour law to forced prison work, prisoners? right to join associations, and the balance between prisoners? rights and public interests related to safety in prisons.

The lawyer assumes that in that case the Court kept an option to reconsider the position in the future, because its decision corresponds to the current position of the Constitutional Court that justifies its approach by the difference in the legal nature of free and forced labour. Alexandra believes that in accordance with the Russian law, it is doubtful that the opposite decision of the ECHR would have been enforced and led to mass creation of trade unions.