Jean-Hugues Matelly is an officer in the gendarmerie, working as a management accountant in the Picardy Gendarmerie Region in France. In April 2007, an Internet forum entitled “Gendarmes and Citizens” (Gendarmes et citoyens) was created. The forum was a properly administered and moderated space, and existed to enable gendarmes and citizens to express themselves and exchange views. Toward the end of March 2008, an association entitled “Forum for Gendarmes and Citizens” (Forum gendarmes et citoyens) was formed to provide a legal framework for this Internet forum; Mr. Matelly was a founding member and its vice-president. As well as civilians and retired gendarmes, other serving gendarmes were involved in the association as members, and some sat on its administrative board.

Like a trade union?

A month after the formation of the association, Mr. Matelly informed the director general of the National Gendarmerie that the association had been set up, and that its primary purpose was for communication. The director ordered Mr. Matelly and the other serving gendarmes who were members of the association to resign from it immediately. He considered the association to be an occupational group similar to a trade union, which was prohibited under the Defense Code, especially considering one of the association’s objectives was “defending the pecuniary and non-pecuniary situation of gendarmes.”

Mr. Matelly informed him that the association was willing to amend the ambiguous references. Although the problematic reference was removed, Mr. Matelly was forced to resign from the association in mid-2008. At the beginning of 2010, the Council of State dismissed an application for judicial review of the resignation order sent to Mr. Matelly and other gendarmes who were members of the association.

Mr. Matelly lodged an application with the European Court of Human Rights, alleging a violation of Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the Convention on Human Rights.

The armed forces require discipline

The court’s judgment (in French) of October 2 examined the complaints solely from the perspective of Article 11 of the Convention, which guaranteed the right to freedom of association, of which trade-union freedom was one aspect. The court emphasized that the provisions of Article 11 did not exclude any occupation or office from its scope; they merely stated, particularly with respect to members of the armed forces, that “lawful restrictions” could be imposed by the states. The court reiterated that those “lawful restrictions” were to be construed strictly and to be confined to the “exercise” of the rights in question, and must not impair the very essence of the right to organize.

With regard to Mr. Matelly’s case, the court considered that the order to resign from his membership of the association “Forum for Gendarmes and Citizens” was imposed on the basis of the Defense Code, which distinguished between membership of ordinary associations, which was authorized, and membership of occupational groups, which was forbidden. In addition, the Council of State had ruled that an association that existed to defend the pecuniary and non-pecuniary interests of military personnel belonged to the second category, and that the regulation prohibiting membership in occupational groups aimed at preserving the order and discipline necessary in the armed forces.

Blanket ban illegal

The court then examined whether the interference with the freedom of association had been proportional. It noted that while the French state had put in place special bodies and procedures to take into account the concerns of military personnel, but the court nonetheless felt that those institutions did not replace the freedom of association right of military personnel, a freedom which included the right to form and join trade unions. The order that Mr. Matelly resign from the association had been taken on the sole basis of a rather wide interpretation of the association’s purpose (have features of a trade union). Moreover, the authorities did not justly regard Mr. Matelly’s attitude and his willingness to comply with his obligations by amending the association’s memorandum.

In conclusion, the court stated that the interference with Mr. Matelly’s rights had not been warranted. Given that the authorities’ decision amounted to an absolute prohibition on military personnel joining occupational groups that could be at all similar to a trade union, the court held that this blanket ban on forming or joining an association had encroached on the very essence of freedom of association and a violation of Article 11 occurred. As the applicant did not submit a claim for just satisfaction, the court did not order it.

In 19 of the 42 states of the Council of Europe with military units, the right to freedom of association for military personnel is not provided. Following the Matelly judgment, all of these states should introduce legislative change in order to ensure compliance with the Convention and to prevent similar violations in the future.