For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9518

15 July 2002

Right to association for members of the professional staff of the armed forces

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Agnes van Ardenne-van der Hoeven, Netherlands, Group of the European People's Party

Summary

Although Article 11 of the European Convention on Human Rights guarantees freedom of association and Article 5 of the European Social Charter (Revised) sets out the right to form, join and actively participate in associations designed to protect their members’ professional interests, military personnel in many Council of Europe member states are still denied this right. The committee calls for the right to be recognised in member states’ military regulations and codes and for the possible setting up of national ombudsmen’s offices for military personnel, while also proposing an amendment to Article 5 of the European Social Charter (Revised) that would bring the freedom of association of members of the armed forces into line with that of the police.

I.        Draft recommendation

1.        The Assembly recalls its Resolution 903 (1988) on the right to association for the members of the professional staff of the armed forces, in which it called on all member states of the Council of Europe to grant professional members of the armed forces, under normal circumstances, the right to association, with an interdiction of the right to strike. It also recalls its Order No. 539 (1998) calling on the member states to implement the European Social Charter.

2.        The freedom of association is guaranteed by Article 11 of the European Convention on Human Rights and Fundamental Freedoms and the right to organise is a right foreseen in Article 5 of the European Social Charter (revised). However, these articles are of limited scope in relation to violations of the recognition of the right of members of the armed forces to form trade unions.

3.        The Assembly observes that, notwithstanding efforts to promote the civic right to association of certain professional groups, the right to organise is still not recognised for members of the professional staff of the armed forces in all member states of the Council of Europe. Furthermore, several member states who recognised the right to organise to this category put severe limitations on the conditions governing it.

4.        In the past years, armies from certain member states converted from a conscription system to a purely professional system. As a consequence, military personnel are becoming increasingly ‘regular’ employees whose employer is the Ministry of Defence and should be fully eligible for the employees’ rights established in the European Convention on Human Rights and Fundamental Freedoms and the European Social Charter.

5.        Members of the armed forces, as ‘citizens in uniform’, should enjoy the full right, under normal circumstances, to establish, join and actively participate in specific associations formed to protect their professional interests within the framework of democratic institutions, while performing their service duties.

6.        The military personnel should be entitled to the exercise of the same rights, including the right to join legal political parties.

7.        Therefore, the Assembly recommends that the Committee of Ministers calls on the governments of the member states:

i. to allow members of the armed forces and military personnel to organise in representative associations with the right to negotiate on matters concerning salaries and conditions of employment;

ii. to lift the current unnecessary restrictions on the right to association for members of the armed forces;

iii. to allow members of the armed forces and military personnel to be members of legal political parties;

iv. to establish these rights in the military regulations and codes of member states;

v.       to examine the possibility of setting up an office of an Ombudsman to whom military personnel can apply in case of labour and other service-related disputes.

8.       The Assembly also calls on the Committee of Ministers to examine the possibility to revise the text of the European Social Charter (Revised), by introducing a new article 5, which would read: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the police and the members of the armed forces shall be determined by national laws or regulations”.

II.       Explanatory memorandum by Mrs van Ardenne-van der Hoeven, Rapporteur

A.        Introduction

1.        Western democratic societies hold a high degree of respect for the protection of human rights. The many different forms of European co-operation thus all find their basis in the preservation of the universal human rights. Although many rights are established in the European Convention of Human Rights and Fundamental Freedoms, a substantial part of society is excluded from a large part of their inalienable human rights. The basic rights of military personnel in many member states of the Council of Europe are seriously limited.

2.        First of all it is important to realise that Article 11 (Freedom of assembly and association) of the European Convention on Human Rights and Fundamental Freedoms reads as follows:

3.        It is well known that the right of assembly and association to protect the interests of professional groups is in the interest of mature democracies. It is important that employees have the opportunity to unite in some form of federation to represent their professional interests in the sphere of working conditions, conditions of employment and pay. This right has been established on several occasions, in the European Convention on Human Rights and fundamental Freedoms and by the Parliamentary Assembly of the Council of Europe. Your Rapporteur holds the opinion that it is unsatisfactory that still in many member states an entire professional group is denied this right.

4.        Also the exercise of this basic right is included in Article 5 of the European Social Charter which is considered by the Committee of Ministers to be one of the benchmarks for all the Council of Europe’s activities in the social field1. In this Article remains the possibility to make an exception for members of the police force and military personnel: “The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations”.

5.        In 1988 the Assembly adopted Resolution 903 on the right to association for members of the professional staff of the armed forces. Paragraph 8 specifically calls on all member states of the Council of Europe – insofar as they have not yet done so – to grant professional members of the armed forces of all ranks the right, under normal circumstances, to establish, join and actively participate in specific associations formed to protect their professional interests within the framework of democratic institutions.

6.        With Recommendation 1415 (1999) the Assembly strongly reaffirmed its commitment to the effective protection of human rights. It observes that there can be no genuine democracy without recognition of all human rights, including civil rights.

7.        Since the adoption of Resolution 903 however, no significant progress has been made in this matter. Still less than half of the 43 member states of the Council of Europe recognise the right of professional staff of the armed forces to freedom of peaceful assembly and to freedom of association with others, although this right is guaranteed in the European Convention on Human Rights and Fundamental Freedoms and the European Social Charter. Also the fact that many member states impose rigorous restrictions on the freedom of assembly and association for professional military personnel is considered alarming by your Rapporteur.

8.        Assembly Order 539 (1998) states that it is the aim of the Council of Europe to achieve a greater unity between its members and therefore instructed the Social, Health and Family Affairs Committee to control whether member states respect the provisions of the European Social Charter, its protocols and the Revised Social Charter.

9.        Therefore on 4 May 2001 the Assembly adopted a motion for a Recommendation by Mr. Jurgens and others. In this motion it is recommended that the Committee of Ministers reconsider the issue of the right of members of the armed forces to join and participate in specific associations formed to protect their professional interests within the framework of democratic institutions and promote the acceptance of this right in all member states.

B.        Developments

10.        The last years have seen continuous motion towards military co-operation and integration between European countries and the establishment of a common European Defence and Security Identity with a European Rapid Reaction Force. Also the Partnership for Peace has resulted in military co-operation in both exercises and missions. The enlargement of NATO and the European Union will result in even more and further-reaching co-operation and integration. In the case of combined action by armed forces, for example in peace keeping missions, the differences in human rights and fundamental freedoms for military personnel between member states become all the more visible. The encouragement of equality, security, and stability in European armed forces is of vital importance. The granting of democratic rights to professional members of the armed forces makes up an important part of this.

11.        A second development that has taken place in the member states in the past years is the conversion from military systems with conscription to armed forces that rely entirely on professional soldiers. As a consequence of this military personnel become increasingly ‘regular’ employees whose employer is the Ministry of Defence. Therefore they should, in the opinion of your Rapporteur, be fully eligible for the social – employees’ - rights established in the European Convention on Human Rights and Fundamental Freedoms and the European Social Charter.

12.        In the third place, with the declining share of conscripts in military personnel, the Departments of Defence will have to rely more heavily on volunteers to fill their vacancies. Eventually this not only means that the working conditions in the armed forces will have to become more competitive towards the working conditions elsewhere at the labour market, but also that the armed forces may not exclude themselves from society by denying human rights and fundamental freedoms to their members. This could be achieved to a large extent by allowing military personnel to make full use of their social rights.

13.        Paragraph 2 of Article 11 of the European Convention on Human Rights and Fundamental Freedoms leaves open the possibility for governments to impose restrictions on the right to freedom of assembly and association for certain groups in society. However, this far-reaching right must be treated with care and should only be used in case of a serious threat to national security. Improper uses of this paragraph, by taking away every right of assembly for military personnel should be prevented. Accordingly, in a normal situation freedom of association for members of the armed forces must be allowed and should be regulated by law.

14.        According to contemporary conceptions, employees may not be restricted in their fundamental freedoms any more than is strictly necessary in the industrial relation, whereby it must be reviewed that such restriction is not disproportionate in proportion to the goal. Moreover, respecting fundamental freedoms is a general interest. Governments have to ensure that employers respect these fundamental freedoms, if need be with legislation.

15.        In the opinion of your Rapporteur, all member states should allow professional military personnel to form, establish and join professional associations aimed at improving working conditions in the armed forces. Such organisations would provide a much-needed independent and professional support network. The form of these associations – trade unions, trade associations or at least representative associations – is a national prerogative and may be lead by social, cultural, historical and legal considerations. The right to association however is fully applicable to professional military personnel and should therefore be embedded in the laws and regulations of the member states.

16.        What’s more, the ILO states that the ILO-Treaty 87, on the right to association to look after the professional interests of a certain professional group can not be treated separately from Treaty 98 on the right of that professional group to negotiate. This should also apply to military personnel.

C.        Present situation

17.        The questionnaire sent to the national parliamentary delegations inquired about the present restrictions imposed to military personnel on the right of association which go beyond the general restrictions on the right to association in the member state concerned. A total of 22 replies to the questionnaire of the Rapporteur were received (Azerbaijan, Cyprus, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Luxembourg, “the former Yugoslav Republic of Macedonia”, the Netherlands, Norway, Poland, Slovenia, Sweden, Switzerland, Ukraine, United Kingdom, Yugoslavia).

18.        The restrictions put by the Council of Europe member states on the right to freedom of association vary. Many countries have not implemented Article 11 of the ECHR in national legislation at all. Others have done so, but military regulations impose severe restrictions. The European Committee of Social Rights concluded to the non-violation of article 5 of the European Social Charter in three different cases brought to it by EUROFEDOP (European Federation of Employees in Public Services) and recalled its constant case-law in which it says that the member states are entitled to bring any kind of limitation and even the full suppression of trade unions’ freedom of members of staff of armed forces. A modification of article 5 could be envisaged, so as to permit a more dynamic interpretation of the article, such as the one the Committee gives for the trade union’s freedom of police.

19.        There are however some exemplary member states. In Austria, Denmark, Finland, Norway, Sweden and Switzerland for example, no restrictions whatsoever are placed on the freedom of assembly and association of military personnel. They are allowed to participate actively in a political party or association to protect their professional interests, just as other citizens. The Netherlands and Belgium – that country did not respond to the questionnaire - allow members of the armed forces the same rights. In Norway professional military personnel are entitled to unpaid leave for a maximum of 3 years to work for such an association, more than 30 independent associations exist and almost 95% of personnel in the Norwegian armed forces are members of one or more associations. Sweden has known no restrictions for military personnel on the right to association since 1974. Switzerland only limits the right to strike for members of the armed forces when matters of national security are involved. Although Ireland, Portugal and Bulgaria did not respond to the questionnaire, the governments of these member states have allowed members of the armed forces the right to association. Ireland has done so in 1991, Portugal in 2001 and Bulgaria very recently, in April 2002. These member states provide an example worth following.

20.        Other member states such as Germany, Hungary, The Netherlands and Luxembourg choose intermediate forms by allowing members of the armed forces to be members of and actively participate in associations protecting their professional interests, but regulating in some form their membership of political parties. In the Netherlands consultative structures of military personnel have existed since the late 1920’s; in the late 1980’s negotiations were introduced in the primary working conditions. All political activities are allowed with the exception of being a Member of Parliament. In Germany military personnel can be active members of political parties, however they must comply with their service duties. In Luxembourg professional associations and political activities of military personnel are allowed, but they can not be members of representative bodies on the national or local level. Hungarian military personnel have the possibility to be candidate in parliamentary or municipal elections; but their military status is in intermission until after the termination of their mandate. After that their status can be set back if they wish so.

21.        In many member states however taking part in political activities and membership of political parties is not allowed. Members of the armed forces are seen to maintain a position of political neutrality. Azerbaijan, the Czech Republic, Estonia, Finland, Romania, Slovenia and Ukraine forbid membership of political parties, but allow (in restricted forms) the right to association to protect the professional interests of military personnel. The right to strike is withheld from military personnel in these countries.

22.        Azerbaijan imposes no restrictions on military personnel on the right of association. In the Czech Republic military personnel is allowed to associate in “professional associations”, but the activities of such an association are to be guaranteed by a co-operation arrangement with the Ministry of Defence. Romania – a country that did not resond to the questionnaire - imposes the restriction that members of the armed forces are not allowed to ”join trade unions or associations, which contravene the unique command”. Apart from that, participation in an association protecting the professional interests of members of the armed forces is allowed. The Slovenian Ministry of Defence assists and finances the Association of Slovene Officers and other organisations whose activities are of particular importance for defence. Ukraine allows setting up voluntary associations to protect the professional interests of military personnel, with the exception of organisations having “statutory provisions that contradict the precepts of the activities of the armed forces of Ukraine”.

23.        In conclusion a number of replies to the questionnaire revealed that in several member states association of members of the professional staff of the armed forces is still forbidden, in defiance to Article 11 of the European Convention on Human Rights and Fundamental Freedoms. Croatia, France, Italy, Poland and Yugoslavia specifically prohibit military personnel to organise trade unions and political parties in the armed forces. All of these member states except for Croatia also prohibit members of the armed forces to set up any professional association. In Italy organising any non-duty related gathering of military personnel is illegal. However the Italian Parliament is currently considering measures reforming military representation. Members of the French armed forces are allowed to be candidate in elections for representative bodies at the local and national level. Several restricting sections of the law on military personnel are in that case suspended for the duration of the political campaign.

D.        Concluding remarks

24.        Your Rapporteur concludes that despite the existence of Article 11 of the European Convention on Human Rights and Fundamental Freedoms and despite Article 5 of the ESC, Assembly Resolution 903 and Recommendation 1415, at this moment the right to establish, join and actively participate in associations formed to protect their professional interests is still withheld from military personnel in many member states of the Council of Europe.

25.        The replies to the questionnaire revealed that many different forms of association for members of the armed forces are established in the laws and military regulations in the member states. In some states military personnel are granted full freedom of assembly and association, something worth striving for in all member states. Many other countries however know limiting conditions, place professional associations under government supervision or downright prohibit members of the armed forces to associate.

26.        Although lawful restrictions on the freedom of assembly and association for certain professional groups are permissible by Article 11 of the European Convention on Human Rights and Fundamental Freedoms - for reasons of the protection of national security and public order - these measures should not apply to military personnel under normal circumstances, as is also established in Resolution 903 (1988). These restrictions for exceptional situations are however in many cases made standard for military personnel by the governments of member states. These member states are in that way going past the basic principle of the freedom of assembly and association for all citizens. The principle that military personnel are considered as ‘citizens in uniform’ implies that they should also have basic social rights. It should be recalled that according to the case-law of the European Court of Human Rights, the trade union’s right is a minor right which modalities are not fixed, and the specificity of the trade union’s right is not recognised. Many cases concerning the trade union’s right were declared inadmissible by the Commission or the Court.

27.        In the opinion of your Rapporteur, taking into account the original intention of the second paragraph of Article 11, in all member states at least representative associations of military personnel should be allowed. With that members of the professional staff of the armed forces should have the full opportunity of negotiation on working conditions, conditions of employment and pay.

28.        Other, already existing forms of freedom of association should however not be excluded or abolished. Some member states already grant military personnel the same rights as regular citizens with regard to the right of assembly or association, but even in most of these countries an exception is made with respect to the right of members of the armed forces to go on strike. This is a comprehensible restriction, but only when matters of national security or stability are involved. According to your Rapporteur the situation in these countries must remain the eventual aim for all member states of the Council of Europe.

29.        There is no reason why military personnel, as ‘citizens in uniform’, should not be allowed to be members of political parties. The political neutrality of the armed forces can be guaranteed by restricting overt political activities of military personnel in uniform or identifying themselves as military personnel. Also their military status can be suspended while being a candidate or a member of a representative body.

30.        Apart from allowing professional staff of the armed forces to associate and be members of political parties, some member states have appointed an independent ombudsman for the armed forces (inspector general). In case of a labour dispute an individual or groups of military personnel can apply to this impartial mediator. The reports and advice of this ombudsman are subsequently reckoned with in outlining the labour policy of the Ministry of Defence. Your Rapporteur is of the opinion that in addition to the removal of restrictions to the right to association member states should also seriously consider appointing an ombudsman.

APPENDIX

Questionnaire

sent to the national parliamentary delegations

1. Article 11 of the European Convention on Human Rights reads as follows:

"Article 11 – Freedom of assembly and association

With reference to this Article, has your country imposed restrictions for professional military personnel on the right to association which go beyond the general restrictions on the right to association in force in your country?

2. If so, do they concern the right to:

3. With reference to Resolution 903 (1988) of the Parliamentary Assembly (appended), in particular its paragraph 8, what action has been taken to grant members of the armed forces the right, under normal circumstances, to establish, join and actively participate in specific associations formed to protect their professional interests within the framework of democratic institutions

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc. 9080 and Reference No. 2607 of 22 May 2001

Draft recommendation unanimously adopted by the committee on 13 June 2002

Members of the committee: Mr Lintner (Chairperson), Mr Magnusson, Mrs Gülek, Mr Marty (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andican, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Barquero Vázquez, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov (alternate: Mr Khripel), Mr Chaklein, Mrs Christmas-Mřller, Mr Clerfayt, Mr Contestabile, Mr Davis, Mr Dimas, Mr Engeset, Mr Enright, Mrs Err, Mr Fedorov, Mrs Frimansdóttir, Mr Frunda, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty, Mr Jansson, Mr Jaskiernia, Mr Jurgens, Mr Kastanidis, Mr Kelemen, Mr Kostytsky, Mr S. Kovalev (alternate: Mr Zavgayev), Mr Kresák, Mr Kroll, Mr Kroupa, Mr Lacăo, Mrs Libane, Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Mas Torres, Mr Masseret, Mr McNamara, Mr Meelak, Mr Michel, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pellicini (alternate: Mr Budin), Mr Penchev, Mr Piscitello, Mrs Postoica, Mr Pourgourides, Mrs Roudy, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Stoisits, Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tepshi, Mrs Tevdoradze, Mr Vanoost, Mr Vera Jardim, Mr Volpinari, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Ms Coin, Mr Sich, Ms Kleinsorge, Mr Ćupina, Mr Milner


1 Reply from the Committee of Ministers to Recommendations 1354 (1998) and 1415 (1999).