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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Employment Rights Secured by ECHR

13.08.2014

Oleksandr Dementiev, Lawyer at Ilyashev & Partners
Source: The Yurydychna Praktyka

The right to exercise a profession, although not expressly guaranteed, is protected by the European Convention on Human Rights Ukrainian Ministry of Economic Development and Trade expects annual unemployment rates in 2014 to reach 8%, the Minister of Economic Development and Trade Anatoly Masiuta said on July 11, 2014. Masiuta also noted that the figure was not final and that ultimate unemployment rates would depend on the developments in the country’s Eastern regions, Russia’s acts and economic situation in Ukraine in general. It is useful to remember that following the annexation of Crimea, unemployment rates in May 2014 dropped to 1.7% as compared to 1.8 of able-bodied population in April.

How to protect yourself

With unemployment rates more than quadrupled in such a short period of time, the growth seems extremely serious if not catastrophic for the long-suffering people of Ukraine. This leaves people increasingly disaffected, raising too many questions to the government, one of the most important being as follows: • Whether there are effective ways of making unemployment complaints • Whether the government has any positive obligations before its citizens to embrace effective reforms improving the employment situation • Whether the government has any pecuniary responsibility towards each of its citizens for its actual inability to effective reforms It is therefore not surprising that the European Court of Human Rights (the Court) developed unique case law that by implication guarantees everyone the right to exercise a profession. It is noteworthy, however, that no provision of the European Convention on Human Rights (the Convention) by itself guarantees this right, only affording protection against any forms of slavery, servitude or forced labor (Article 4 of the Convention). I find it interesting that certain aspects of the right to work are interpreted by the European Court through the right to respect for private and family life guaranteed by Article 8 of the European Convention. It reads that everyone has the right to respect for his private and family life, his home and his correspondence. First, it is worth noting that the European Court has construed the “right to respect” guaranteed by the first sentence of Article 8 in the light of paragraph 2 stating that “there shall be no interference by a public authority with the exercise of this right.”

No action is not an option

It can seem that a mere duty to abstain from interference can make a state comply with Article 8. Indeed, in its judgment in the Belgian Linguistic case (case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium) of 23 July 1968, the European Court has reaffirmed that the primary duty of a state is to abstain from action. However, basing on the fundamental principles of Article 8, the Court has arrived to the conclusion that a state must, in certain circumstances, act in such manner that would guarantee the enjoyment of certain rights. In its judgment in X and Y v. the Netherlands, the Court recalled that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. Thus, the interrelated aspects of no intervention and a positive obligation play an important role in construing the concept of the “right to respect” as provided by the European Convention. Now, I will proceed to analyze whether the unlawful deprivation of the right to exercise a profession constitutes a violation of a person’s right to private life in the meaning of Article 8 of the Convention and in the context of the case law developed by the European Court. In Peck v. the United Kingdom, the European Court stated that private life is a broad term not susceptible to exhaustive definition (application No. 44647/98, paragraph 57). However, the Court noted that Article 8 covers the physical and moral integrity of the person (X and Y v. the Netherlands, judgment of 26 March 1985, paragraphs 22–27), including the right to private life without any unwanted interference. There are two key judgments of the European Court that explain the right to exercise a profession in the meaning of Article 8 of the Convention. The first is the judgment in the case of Brueggemann and Scheuten v. Germany (application No. 6959/75) in which the Court said that the right to respect for private life was of such a scope as to secure to the individual a sphere within which he can freely pursue the development and fulfillment of his personality. The second is the judgment in the case of Niemietz v. Germany (judgment of 16 December 1992, paragraph 29) in which the Court said: “he Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.”

Lost in determination

Another confirmation for this point of view is that it is sometimes hard to distinguish which human activity is part of his of her professional of business life and which is not. So, for example – and it is particularly true for the self-employed or people of liberal professions – the profession can become part of a person’s private life to such extent that is virtually impossible to determine in what capacity he or she acts in this or that moment of time. It is noteworthy that, taking account of the principles now dominating in the democratic states, the European Court held that a broad ban to work in the private sector touches the sphere of “private life”. Indeed, the Court attached particular weight to sentence 2 of Article 1 of the European Social Charter and the way it is interpreted by the European Committee on Social Rights (ECSR), as well as the documents of the International Labour Organization (ILO). In its judgment in Airey v. Ireland, the Court also recalled that the Convention may extend into the sphere of social and economic rights (judgment of 9 October 1979, applications no. 6289/73, paragraph 26). For example, in Smirnova v. Russia, speculating on how applicant’s private life was affected by the seizure of her passport, the European Court established that in their everyday life Russian citizens have to prove their identity unusually often, even when performing such mundane tasks as exchanging currency or buying train tickets. The internal passport is also required for more crucial needs, for example, finding employment or receiving medical care. The deprivation of the passport therefore represented a continuing interference with the applicant’s private life in violation of Article 8 (Applications nos. 46133/99 and 48183/99, judgment of 24 July 2003, paragraphs 96-97)

 
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