Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee has noted with interest the information provided by the Government in its first and second reports on the application of the Convention, as well as comments made by the Confederation of Trade Unions of Turkey (TÜRK-IŞ) and the Turkish Confederation of Employer Associations (TISK) annexed to the Government’s reports. It requests the Government to provide, in its next report, additional information on the following points.

Article 1(1) and Article 2(1) and (2)(a) of the Convention. 1. The Committee refers to its comments made under the Abolition of Forced Labour Convention, 1957 (No. 105), also ratified by Turkey, where it noted the observations of TÜRK-IŞ that Council of Ministers Resolution No. 87/11945 of 12 July 1987 provides that conscripts in excess of the needs of the military can be obliged to work in public undertakings in lieu of military service, without their consent and under military discipline. The Committee also noted the provisions of section 10 of the Military Service Act, No. 1111, as amended by Act No. 3358, as well as the Council of Ministers Resolutions No. 86/10266 of 17 January 1986 and No. 87/11945 of 12 July 1987, which lay down principles and procedures relating to the surplus reserves. The Committee referred to paragraphs 49 to 54 of its 1979 General Survey on the abolition of forced labour, where it pointed out that "the Conference has rejected the practice of making young people participate in development activities as part of their compulsory military service or instead of it, as being incompatible with the forced labour Conventions".

The Committee hopes that the necessary measures will soon be taken with a view to repealing the above provisions in order to bring legislation into conformity both with the Convention No. 105 and the present Convention, and that the Government will provide information on the action taken to this end.

2. Please indicate any provisions applicable to military officers and other career military servicemen, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(b). The Committee has noted that, under article 18 of the Constitution of Turkey, the term "forced labour" does not include physical or intellectual work necessitated by the requirements of the country as a civic obligation. Please describe such "physical or intellectual work" which may be exacted "as a civic obligation" and supply copies of relevant provisions.

Article 2(2)(c). 1. The Committee has noted that, under article 18 of the Constitution of Turkey, the term "forced labour" does not include work required of an individual while serving a court sentence or under detention. It has also noted that, under section 17 of the Enforcement of Sentences Act (No. 647, of 13 July 1965) and section 198 of the Regulations pertaining to the Administration of Penitentiaries and Detention Centres and to the Execution of Sentences adopted by decision of the Council of Ministers of 5 July 1967, No. 6/8517, as amended, prison labour shall be compulsory for convicts and remand prisoners. The Committee recalls that compulsory prison labour is excluded from the scope of the Convention only if such labour is imposed as a consequence of a conviction in a court of law. It draws the Government’s attention to the explanations contained in paragraphs 35, and 89 to 96, of its 1979 General Survey on the abolition of forced labour, where it pointed out that:

... persons who are in detention but have not been convicted - such as prisoners awaiting trial or persons detained without trial - should not be obliged to perform labour (as distinct from certain limited obligations intended merely to ensure cleanliness). The Convention does not of course prevent work from being made available to such prisoners at their own request, to be performed on a purely voluntary basis. It also follows from the term "conviction" that the person concerned must have been found guilty of an offence. In the absence of such a finding of a guilt, compulsory labour may not be imposed, even as a result of a decision by a court of law.

The Committee hopes that the necessary measures will be adopted to amend the abovementioned provisions, so as to ensure that prisoners awaiting trial or detained without trial (such as remand prisoners or prisoners remanded by a court decision, as referred to in section 198) are not obliged to perform labour, in order to bring legislation into conformity with the Convention on this point. It requests the Government to provide, in its next report, information on the action taken in this regard.

2. The Committee has noted that, under section 17 of the Enforcement of Sentences Act referred to above, and under sections 198 and 200 of the Regulation No. 6/8517 referred to above, certain categories of convicts (such as, e.g., convicts in low-security and medium-security prisons or convicts in maximum-security penitentiaries who have no more than two years to serve before being released, etc.) may be employed in places of employment in both the public and private sector.

The Committee recalls that, under Article 2(2)(c) of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: "… that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations".

The Committee has always made it clear that the two conditions are cumulative and apply independently; i.e., the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the Committee’s General report to the 89th Session of the International Labour Conference, 2001). As the Committee repeatedly pointed out, it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention (ibid., paragraphs 128 to 143).

The Committee therefore requests the Government to describe the organization of prisoners’ work for private employers, both inside and outside prison premises, and to supply specimen copies of protocols concluded between prison authorities and private users of prison labour pursuant to sections 6, and 10 to 14, of the Regulations pertaining to the Employment of Convicts Detained in Penitentiary Institutions at Places of Employment Outside Prisons (No. 83/7041, of 26 August 1983), which lay down conditions of employment of prisoners working outside prison premises. The Government is also requested to indicate any measures taken to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship; such measures should include the formal consent of the person concerned, as well as - given the absence of alternative access to the free labour market - further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security.

Article 2(2)(d). The Committee has noted that, under article 18 of the Constitution of Turkey, the term "forced labour" does not include services required from citizens during a state of emergency, which may be declared, under article 119 of the Constitution, in the event of natural disaster, dangerous epidemic diseases or a serious economic crisis. It also notes that, under section 10 of the State of Emergency Act (No. 2935, of 25 October 1983), the Council of Ministers may issue decrees to determine obligations and measures to be taken in the event of serious economic crisis, which may concern, inter alia, labour issues.

The Committee recalls that the concept of emergency - as indicated by the enumeration of examples in Article 2(2)(d) of the Convention - involves a sudden, unforeseen happening calling for instant countermeasures. The notion of a "serious economic crisis" referred to in the above provisions does not seem to satisfy these criteria. The Committee draws the Government’s attention to the explanations given in paragraphs 36, and 63 to 66, where it pointed out that:

In order to ensure that recourse to compulsory call-up of labour under emergency powers remains within the limits laid down in the forced labour Convention and does not develop into mobilization of labour for purposes of economic development, certain conditions should be observed. In order to avoid any uncertainty as to the compatibility of national provisions with the applicable international standards, it should be clear from the legislation itself that the power to exact labour is to be limited to what is strictly required in order to cope with circumstances endangering the existence or well-being of the whole or part of the population.

The Committee hopes that the necessary measures will be taken in order to limit the above provisions concerning the exaction of compulsory work or service in cases of emergency to a strict minimum allowed by the Convention, and that the Government will provide information on the action taken to this end.

Article 2(2)(e). The Committee has noted the provisions of the Village Affairs Act No. 442, of 18 March 1924, according to which village affairs are divided into two categories: matters of a mandatory nature and matters subject to the request of the villagers; failure to perform mandatory action shall be penalized (section 12). The Committee recalls, referring to paragraph 37 of its 1979 General Survey on the abolition of forced labour, that the exception of "minor communal services" allowed under Article 2(2)(e) of the Convention must satisfy certain criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which must be abolished (such as forced labour for general or local public works). These criteria are as follows:

-           the services must be "minor services", i.e., related primarily to maintenance work and - in exceptional cases - to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.);

-           the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group;

-           the "members of the community" (i.e., the community which has to perform the services) or their "direct representatives" (e.g., the village council) must "have the right to be consulted in regard to the need for such services".

The Committee observes that certain kinds of work listed under section 13 of the abovementioned Act as "mandatory for villagers" (such as, e.g., building and repairing roads leading from the village to the government centre or neighbouring villages, or building bridges over such roads, etc.) do not seem to meet the criteria of "minor services" or "communal services" referred to above. Moreover, there is no provision for consultation in regard to the need of works or services exacted under section 13.

The Committee hopes that the necessary measures will be taken with a view to amending the above provisions of the Village Affairs Act in order to bring it into conformity with the Convention, and that the Government will report on the action taken in this regard.