24
72.
The two above-mentioned dimensions (supra paras. 69, 70 and 71) of
freedom of association must be guaranteed simultaneously, respecting the
restrictions allowed in paragraph 2 of Article 16 of the Convention.
73.
In the Baena Ricardo et al. case, the Court indicated:
[…] freedom of association, in the case of trade unions, is essential for the defense of
the legitimate interests of the workers and is framed within the corpus juris of human
rights.15
74.
The Court recalls the contents of the Protocol of San Salvador of November
17, 1977, and of ILO Convention No. 87 concerning freedom of association ad
protection of the right to organize of June 17, 1948, which, in their Articles 8(1)(a)
and 11, respectively, includes the obligation of the State to allow trade unions,
federations and confederations to function freely. Peru ratified ILO Convention No. 87
on March 2, 1960.
75.
The ILO Committee on Freedom of Association has stated that:
Freedom of association can only exercised in a situation in which fundamental human
rights are fully guaranteed and respected, particularly those related to the life and safety
of the individual.16
76.
The European Court of Human Rights has stated that the effective exercise of
freedom of association cannot:
... be reduced to a mere obligation on the part of the State not to interfere; a merely
negative concept would not be compatible with the object and purpose of Article 11 [of
the European Convention, which] on some occasions requires the adoption of positive
measures, even in the sphere of relations between individuals, should the case merit
it.17
77.
The Court considers that the content of freedom of association implies the
power to choose how to exercise it.18 In this regard, an individual does not enjoy the
full exercise of the freedom of association, if, in reality, this power is inexistent or is
limited so that it cannot be implemented.19 The State must ensure that people can
freely exercise their freedom of association without fear of being subjected to some
15
Case of Baena Ricardo et al., supra note 13, para. 158.
16
ILO. Decisions of the Committee on Freedom of Association: 233rd Report, Case No. 1233 (El
Salvador), para. 682; 238th Report, Case No. 1262 (Guatemala), para. 280; 239th Report, Cases Nos.
1176, 1195 and 1215 (Guatemala), para. 225(c); 294th Report, Case No. 1761 (Colombia), para. 726;
259th Report, Cases Nos. 1429, 1434, 1436, 1457 and 1465 (Colombia), para. 660; see also, Human
Rights Committee, U.N., López Burgo case. Communication 52/1979: Uruguay. 29/07/81.
CCPR/C/13/D/52/1979. (Case law); and ICHR. Case 4425 (Guatemala), Decision No. 38/81 of June 25,
1981, first and second operative paragraphs. 2.
17
Eur. Court H.R. Plattform “Ärzte für das Leben” v Austria, Judgment of 21 June 1988, Series A
no. 139, par. 32; and Cf. Eur. Court H.R. Gustafsson v Sweden, Judgment of 25 April 1996, Reports 1996II, para. 45.
18
Cf. Eur. Court H.R. Young, James and Webster v United Kingdom, Judgment of 13 August 1981,
Series A no. 44, para. 52.
19
Cf. Eur. Court H.R. Young, James and Webster v United Kingdom, supra note 18, para. 56; and
Eur. Court H.R. Plattform “Ärzte für das Leben” v Austria, supra note 17, para. 32.
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