Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Türkiye (Ratification: 1993)

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Case of Disk and Kesk v. Türkiye

Civil liberties. In its previous comments the Committee had requested the Government to provide its comments on several serious allegations of violations of civil liberties submitted in the observations of the KESK, the DİSK and the ITUC. The Committee notes the information provided by the Government in this respect as follows.

Arrest, detention, and prosecution of union leaders. Concerning the allegation of arrest in Ankara of eight leaders of the Trade Union of Employees in Public Health and Social Services (SES) on unspecified charges on 25 May 2021, the Committee notes the Government’s indication that an investigation was launched against these individuals under the charge of establishing or managing an armed terrorist organization (the PKK), as defined by article 314/1 of the Turkish Penal Code. Subsequently, they were released with judicial orders that imposed international travel bans and judicial controls. However, one individual, subject to an arrest warrant following the objection of the investigating prosecutor, remains a fugitive. The Committee also notes the latest observations of the KESK in this respect, stating that the public prosecutor accuses five SES executives of leadership of an armed illegal organization (Ms Selma Atabey, co-president and former women’s secretary, Ms Gonul Erden, former co-president, Ms Bedriye Yorgun, former president, Mr Fikret Calagan, former executive committee member, and Ms Belkis Yurtsever, former executive committee member); and three union officials are accused of membership in the same organization (Ms Rona Temelli, former executive of the SES Branch in Ankara, Mr Ramazan Tas, former executive of the SES Branch in Ankara and, Mr Erdal Turan, former executive of the SES Branch in Ankara). The KESK states that there is no concrete evidence upholding these accusations and affirms that as the judge decided to declare confidentiality on the file, the legal team had no access to its details until the court approved the indictment. The KESK indicates that Ms Erden was arrested on 22 September 2021 and was released on 13 March 2023, and Ms Atabey was arrested on 3 July 2022 and released on 5 June 2023. The KESK alleges that the public prosecutor uses trade union activities of the indicted union leaders to justify his accusation of their membership in the armed illegal group. The KESK indicates that these trade union activities included protesting the ISIS attacks in Syria and curfews in the south-eastern region of Türkiye. According to KESK, the accused SES leaders had organized public gatherings to ask the Government to provide health services to citizens in the curfew areas. The Committee further notes the KESK observation concerning the trial in Van of Ms Figen Colakoglu and Mr Zeki Seven, the co-presidents of the local branch of the SES, for violation of the Law on Demonstrations by participating in a press conference as part of a one-day strike of health employees organized by the Turkish Medical Association on 8 February 2022. The Government indicates in this regard that these union leaders were informed that the Governor’s Office had decided to prohibit the press conference that was planned to take place in front of the Chief Physician’s Office of the Training and Research Hospital, and legal action was taken against them after they did not comply with the authorities’ warnings. The case is still pending. Noting the information submitted and emphasizing the importance of the right to a fair trial for the guarantee of freedom of association, the Committee requests the Government and the KESK to continue to provide information concerning the judicial proceedings against the 10 SES leaders and their outcome. The Committee requests the Government to provide a copy of the court rulings once issued.

Freedom of peaceful assembly and demonstration. The Committee notes the general indications of the Government concerning the legal framework of exercise of freedom of assembly in Türkiye, which reproduce the previous years’ explanations relating to Act No. 2911. The Government indicates that meetings and demonstrations held at designated places can occur freely, provided administrative authorities are notified to facilitate necessary security measures. The primary criterion for determining these venues and routes is to ensure that citizens’ daily lives are not excessively disrupted. The Government also indicates that the data covering the last three years show that for “illegal demonstrations”, namely those in which demonstrators gathered in places other than those designated by authorities despite contrary warning, or did not duly notify, the authorities had tried to resolve the matter through negotiations with the demonstrators, and that consequently the rate of law enforcement intervention has decreased over this period. According to the Government, 22 million people participated in 64,993 protests or events in 2022, out of which 697 protest events were illegal. Intervention was made in 335 “illegal” protests only, which represents 0.5 per cent of the total number of protests that took place in the country. This shows a clear decline from the 2 per cent in 2016.

Regarding the DİSK allegation concerning the ban on May Day celebrations in Istanbul Taksim square, the Committee notes the Government’s indication that demonstrations are forbidden in Taksim square not only on May Day, but around the year, as this area is not among those enumerated in the decision of the İstanbul Governor’s Office published on 27 February 2023, which designates the locations where meetings and demonstrations are allowed to take place. The Government indicates that on some occasions in the past, the administration allowed a limited number of trade union representatives to hold a commemorative meeting in Taksim square on the May Day, as the applicant had cited the symbolic importance of holding the event there. The administration limited the right to assembly and demonstration in that area, considering the security reasons against holding a meeting with large participation in Taksim Square are stronger than the disadvantage caused by banning the meeting. The Committee recalls that the issue of the ban on May Day demonstrations in Taksim was first brought to its attention in 2008 and notes that the European Court of Human Rights (ECHR) has ruled on two cases concerning the 2008 ban on the May Day demonstration in Taksim and the police intervention against the unionists who had attempted to gather despite the ban. In both cases the Court found a violation of the right to freedom of assembly, because of the disproportionate character of the police intervention in a peaceful, albeit unauthorized demonstration [see Case of Disk and Keskv. Türkiye (2012), and Case of Süleyman Çelebi and Others v. Türkiye (No. 2) (2017)]. The Committee further notes that in the first case, the ECHR took note that in 1977, during Labour Day Celebrations in Taksim Square, 37 people had died when a clash had broken out. As a result, the Taksim Square became a symbol of that tragic event, and it was for this reason that the applicants insisted on organizing the Labour Day celebrations there. The Committee notes that pursuant to the indications of the Government and the DİSK, the ban on May Day gatherings in Taksim remains effective, and the workers who wish to celebrate May Day in Istanbul are required to gather in other locations. More generally, the Committee notes the observation of the DİSK, indicating that every year during May Day celebrations, many people are detained and injured because of violent police attacks and use of tear gas. The Committee notes the Government’s indication in this respect that in 2022, legal action was initiated against 222 persons who had acted illegally in the actions or events organized at the occasion of May Day, but this should be put in the context that 337 May Day events took place throughout the country with the participation of 144,262 persons. The Committee also notes that regarding the allegation of an absolute ban on all forms of public gatherings in the city of Van, the Government indicates that in 2023 the KESK organized 16 events in Van, all of which concluded without any issues.

The Committee further notes the Government’s replies to 14 specific allegations concerning events that occurred between November 2021 and August 2023, in which public meetings, demonstrations or press conferences by trade unions were not authorized, because the routes chosen by organizers were not among those designated by the authorities, or the governorate had issued a specific ban decision regarding an action. The trade unions concerned were KESK and its affiliates Eğitim-Sen, TUM BEL SEN and SES; as well as Birlesik Metal Is which is an affiliate of the DISK, and the Private Sector Teachers’ Union. The Government indicates that in those cases the organizers were warned that their action is not authorized but proceeded regardless of such warnings. The Government informs that the authorities intervened in all these demonstrations. Regarding five cases the Government indicates that the action ended peacefully after negotiations between the authorities and the organizers, notably when the groups voluntarily ceased their actions or accepted to change its location, but in 9 other instances, certain demonstrators persisted to pursue their actions and “legal action” was taken against them. The Committee notes that legal action may refer to arrests of an indeterminate number of participants. In one instance an administrative fine was imposed. In at least one case participants were indicted and are currently under trial (case of two SES leaders in Van referred to above). There were allegations of police violence, including use of tear gas and pepper spray in four cases, but the Government rejects all such allegations or does not reply to them.

The Committee notes with concern that according to the Government indications, in at least 14 specific cases public meetings organized by trade unions were banned, and as the participants persisted in pursuing their action the authorities intervened to stop the action and sometimes the participating union members and leaders were arrested. The Committee notes that in relation to none of these cases does the Government indicate that the public meetings were not peaceful: these meetings were “illegal” for not taking place in the designated locations or for not having respected a specific ban on demonstrations. The Committee notes in this respect that the ECHR has considered in the Case of Disk and Kesk v. Türkiye (paragraph 29) that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly is not to be deprived of its substance. The Committee wishes to stress once again the interdependence between civil liberties including freedom of assembly and trade union rights, and to emphasize that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations. The Committee therefore urges the Government to ensure that the measures taken to protect public order do not deprive workers’ organizations of their right to hold peaceful demonstrations and public meetings to defend their interests, and further urges the Government to refrain from arresting, detaining and prosecuting workers and trade unionists for participation in peaceful public meetings.

Right to an effective remedy and to a fair trial of members and leaders of the unions dissolved under the State of Emergency Decree-Laws. The Committee recalls that in follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution), it had urged the Government to ensure that the right to an effective remedy of union members and leaders who had suffered from reprisals and retaliatory acts for their membership in the unions dissolved under the state of emergency, as well as the right to a fair trial of imprisoned leaders and members of those unions are duly respected. The Committee notes that the Government indicates that the individuals and legal entities subject to proceedings based on decree-laws have not suffered any harm. They could submit their applications to the Commission of Inquiry established for this purpose. For judges and public prosecutors, a domestic legal remedy within the Council of State was introduced in relation to decisions regarding “dismissal from profession” which allowed them to initiate new lawsuits related to prior cases brought before administrative courts, including those previously rejected. The persons concerned can present their defences before an impartial judiciary. Avenues for objection, appeal, and individual application to the Constitutional Court are also available. The Government also indicates that workers in the private sector who believe their employment has been unjustly terminated by their employer have the right to initiate legal proceedings at the labour courts without passing through the Commission of Inquiry. Regarding the imprisoned trade union members, the Governments merely indicates in general terms that individuals found to be in contravention of the law are being handled in accordance with the rule of law and that the legislation contains significant safeguards to protect workers, workplace trade union representatives, and managers of workers’ organizations against dismissal due to trade union related reasons.

The Committee notes with deep regret that once again, the Government does not indicate any specific measures taken to implement the recommendations of the tripartite committee. Concerning the Commission of Inquiry on State Emergency Measures, the Committee notes that the mandate of the Commission has ended in January 2023 after five years of operation and the persons who received negative decisions of the Commission had 60 days after notification of the decision to apply to designated administrative courts in Ankara. The Committee notes that the proceedings before the Commission of Inquiry did not present the guarantees of due process of law in terms of defence rights, and the obligation to pass through that stage delayed for a long time the access of dismissed public officials to courts. The Committee also recalls that the tripartite committee had noted in this respect that in cases brought by individuals dismissed due to their membership in a trade union associated with the FETÖ/PDY, the Inquiry Commission did not review the legality of the closure of the relevant trade union or any of the individual’s own activities. Membership in a closed union was easily proven, for example, by information showing that trade union dues were deducted from an applicant’s salary and considered to be sufficient ground to reject an application against the dismissal [see Report of the Committee set up to examine the representation alleging non-observance by Turkey of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), GB.341/INS/13/5, Appendix 1, paragraph 28]. In view of the foregoing, the Committee requests the Government to: (i) take specific measures to ensure that a full, independent and impartial review is made with regard to the cases of all the persons who suffered from reprisals, retaliatory acts and dismissals for their membership in the unions dissolved under the state of emergency, regardless of whether they have applied to the Commission of Inquiry and (ii) provide information on the number of imprisoned members and leaders of the same unions and the status and outcome of any judicial cases against them.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations.Senior public employees, magistrates and prison staff. For many years the Committee has been requesting the Government to amend section 15 of Act No. 4688 which excludes senior public employees, magistrates, and prison staff from the right to organize. The Committee notes that the Government once again indicates that section 15 was designed in line with legal regulations, judicial decisions, and ILO Conventions and that the core rationale behind these limitations rests on the significance of guaranteeing the provision of public services by these public officials in an impartial and unbiased manner. The Government also refers to the exclusion of certain public servants from the scope of the Labour Relations (Public Service) Convention, 1978 (No. 151). The Committee recalls in this regard that: (i) under Article 1(1) of Convention No. 151, more favourable provisions in other international labour Conventions are safeguarded and Convention No. 87 guarantees the right to establish and join organizations for all workers in both the private and public sectors with the sole exception of the armed forces and the police; (ii) to bar senior public officials from the right to join trade unions which represent other workers in the public sector is not necessarily incompatible with freedom of association on the condition that they should be entitled to establish their own organizations to defend their interests; and (iii) while the exclusion of the armed forces and the police from the right to organize is not contrary to the Convention, the same cannot be said for prison staff.

Locum workers (teachers, nurses, midwives, etc.), public servants working without a contract of employment and pensioners. In its previous comment the Committee had noted that locum workers who temporarily fill in positions such as teachers, nurses and midwives in the public service, as well as public servants working without a contract of employment and pensioners, do not have the right to join public service unions under Act No. 4688 and had requested the Government to ensure their right to join or establish organizations. The Committee notes that the Government reiterates its previous indications in this regard that: (i) only public servants as defined in section 3 of Act No. 4688 can join trade unions established within the scope of the Act and locum workers cannot be employed under any cadre or position as specified in section three; and (ii) retired public servants cannot establish or join public servants’ unions, as sections 6 and 14 of the Act restrict these rights to active public servants. According to the Government, they have, however, formed several associations that can bring the issues concerning them to the attention of the Government. Noting with regret the lack of progress in this respect, the Committee once again recalls that: (i) with regard to the right to establish and join organizations, the Convention does not allow any distinction based on whether the employees are engaged on a permanent or temporary basis, or with regard to their contractual status or the lack thereof; and (ii) legislation should not prevent former workers and retirees from joining trade unions, if they so wish, particularly when they have participated in the activity represented by the union.

In light of the above, the Committee urges the Government to take necessary measures to review the legislation or to adopt specific legislation with a view to ensuring that senior public employees, magistrates and prison staff, locum workers, public servants working without a contract of employment and retirees can enjoy and exercise their right to establish and join organizations. The Committee requests the Government to provide information on steps taken to this end.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. Suspension and prohibition of strikes. In its previous comment the Committee had requested the Government to ensure that section 63(1) of Act No. 6356 as well as KHK No. 678 are applied in conformity with the principle that strikes can be suspended only in essential services in the strict sense of the term, for public servants exercising authority in the name of the State or in the event of an acute national crisis. The Committee notes that the Government once again indicates that the decision of the President to postpone a strike is taken within its context and the rationale is clearly indicated in it, hence this authority is exercised within clearly stated boundaries. Furthermore, pursuant to article 125 of the Constitution, this decision is subject to judicial review as an administrative decision. Noting that no strike has been suspended since 2019, the Committee trusts that the Government will apply section 63(1) and KHK 678 in a manner that does not infringe the right of workers’ organizations to organize their activities free from Government interference and requests the Government to provide information on any future instances of suspension of strikes by executive authority.

Article 4. Dissolution of trade unions. In its previous comment the Committee had noted the conclusions of the tripartite committee referred to above about the situation of trade unions dissolved pursuant to Decree-Law No. 667. The tripartite committee noted that these unions were dissolved by the executive branch of the Government, and that while according to the Government, the representatives of these unions had failed to file applications with the Inquiry Commission mandated to examine their cases, the tripartite commission noted that they had a limited capacity to present their claims due to the imprisonment of their leaders and members and seizure of their funds pursuant to the state of emergency Decree-Laws. The tripartite committee had urged the Government to take the necessary measures to ensure that the dissolution of trade unions pursuant to Decree-Law No. 667 is reviewed through the normal judicial procedures, which should also enable those unions to be fully represented to defend their case. The Committee notes the Government’s indication that Decree-Law No. 667 which dissolved Aksiyon-İş was approved by the Grand National Assembly, the legislative body, and it could not be annulled by an administrative court decision. According to the Government the proper place for the complainant to apply was the Commission of Inquiry on the State of Emergency Measures. Only after a negative decision of the Commission, which is an administrative decision, could the case be taken to an administrative court. The Government indicates that Aksiyon-İş did not choose to exhaust the domestic remedies. The Committee notes with regret that the Government appears to indicate that there will be no judicial remedy for the dissolved unions who have failed to apply to the Commission of Inquiry. The Committee also notes the Government’s indication that 4 confederations, 19 federations and 19 trade unions were shut down after the courts found that they were affiliated with terrorist organizations. The Committee once again recalls that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution (see the 2012 General Survey on the fundamental Conventions, paragraph 162). Therefore, the Committee once again urges the Government to take all necessary measures to comply with the recommendation of the tripartite committee regarding all the trade unions dissolved pursuant to Decree-Law No. 667 whose cases are not yet reviewed by a judicial body and to provide information on the steps taken in this respect. The Committee further requests the Government to provide information on all the cases of dissolution of unions that were confirmed by courts and to provide copies of the judgments.

The Committee is raising other matters in a request addressed directly to the Government.