On behalf of the May 1st Labour Union ReLex filed an individual complaint with the Constitutional Court requesting an investigation into whether the provision of the Criminal Code, according to which only natural persons are punished for obstructing the lawful activities of a trade union or its members, is not contrary to Article 50(1) of the Constitution, which stipulates the freedom of trade unions, and Article 30, which enshrines the right to apply to the courts and the right to compensation for damage.
Article 177 of the Criminal Code currently only provides for liability for natural persons who obstruct the activities of a trade union. If it is a legal entity, an employer who commits such a criminal offence through its representatives avoids criminal liability. Clearly, it is the employer who has an interest in obstructing the establishment of a trade union, attempting to control it or otherwise preventing the collective defense of employees’ interests. Therefore, such regulation, where liability is imposed only on natural persons, violates the freedom of trade union activities. The Constitutional Court has ruled that only freely formed trade unions that are independent of state authorities, other state institutions, employers and their organisations, and other organisations can defend the professional, economic, and social rights and interests of employees. According to the Constitution, no legal regulation may restrict or negate the constitutional right of trade unions to form freely and act independently in defending the professional, economic and social rights and interests of employees.
The basis for referring the case to the Constitutional Court arose after the Klaipėda Regional Court issued a final and unappealable decision to terminate the pre-trial investigation, which sought to determine whether the actions of UAB Barbora had committed a crime when, after an independent employee protection organization began operating in one of the company’s divisions, the employer’s representatives established a local trade union, controlled by the employer. The Court ruling does not in any way deny that the employer’s representative at UAB Barbora established a fictitious employee organization, but it states that bringing criminal charges against a person appointed by an employee would be a measure of last resort, and that the trade union has the right to resolve the dispute through civil proceedings.
“The state has a positive obligation to ensure that trade unions operate freely and independently of the employer. The freedom of trade unions includes not only interference in the activities of existing trade unions, but also the freedom to establish an independent trade union. A so-called yellow union, established by the employer to prevent the establishment of an organization representing the interests of employees, is one of the most serious violations of trade union freedom,” emphasizes ReLex lawyer Emilija Švobaitė.
G1PS also asks the Constitutional Court to examine whether such regulation does not violate the right to a fair trial, since in cases where a trade union has not yet been established and the employer deliberately prevents its establishment through its actions, such a means of defending rights is not possible.
If the Constitutional Court accepts the request, the case should be examined within four months of the date of submission of the request, in accordance with the Constitutional Court Act.
With the introduction of individual constitutional complaints procedure in 2019, every person, at least in theory, has the right to submit a request to the Constitutional Court to examine the constitutionality or legality of laws or other acts adopted by the Seimas, acts of the President of the Republic, acts of the Government for compliance with the Constitution or laws, if a decision based on those acts violated the constitutional rights or freedoms of that person and that person has exhausted all legal remedies for the protection of their constitutional rights or freedoms, including the right to apply to the court, and, after exhausting all the possibilities for appealing against the court decision provided for by law, a final and non-appealable court decision has been adopted and no more than four months have passed since the date of entry into force of such court decision.
