Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee has noted the Government’s reply to its previous direct request, as well as comments made by the Turkish Confederation of Employer Associations (TISK) annexed to the Government’s report.

Article 1(1) and Article 2(1) and (2)(a) of the Convention. 1. Use of conscripts for non-military purposes. In its previous direct request, the Committee referred to its comments made under the Abolition of Forced Labour Convention, 1957 (No. 105), also ratified by Turkey, where it noted certain provisions under which 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 has noted the Government’s reply in its 2003 reports on the application of Convention No. 29 and Convention No. 105 and refers to its observation made under Convention No. 105.

2. The Committee again requests the Government to 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 previously 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, and sought clarification of this provision. In the absence of the Government’s reply, the Committee again requests the Government to describe such "physical or intellectual work" which may be exacted "as a civic obligation" and to supply copies of relevant provisions.

Article 2(2)(c). 1. Work of prisoners detained without conviction. In its previous comments, the Committee 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 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 recalled 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.

The Committee notes with interest the Government’s indication in the report that a draft Bill on the execution of sentences has been prepared by a commission established in the Ministry of Justice with the objective of bringing the above provisions into conformity with the Convention, and that the Committee’s comments have been taken into consideration by the said commission. The Committee therefore hopes that the above Bill will soon be adopted and the legislation will be amended, so as to ensure that prisoners awaiting trial or detained without trial (such as remand prisoners or prisoners remanded by 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 progress made in this regard.

2. Work of prisoners for private employers. The Committee previously 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 recalled 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 notes the Government’s indication in the report that a draft Bill on the execution of sentences referred to above contains provisions governing the employment of convicts, both inside and outside prison premises. It hopes that these provisions will be drafted in such a way as to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship, including 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. The Committee requests the Government to provide, in its next report, information on the progress achieved in this regard and to supply a copy of the new law on the execution of sentences, as soon as it is adopted.

Article 2(2)(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee 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 noted 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 recalled 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 notes the Government’s indication in the report that, in spite of the fact that the country has lived serious economic crises at times, no government in Turkey has resorted to the declaration of a state of emergency and no one has been subjected to the exaction of compulsory or forced labour during such a crisis.

While noting this indication, 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, so that recourse to compulsory call-up of labour under emergency powers does not develop into mobilization of labour for purposes of economic development, and that the legislation will be brought into conformity with the forced labour Conventions and the indicated practice. The Committee requests the Government to provide, in its next report, information on the action taken to this end.

Article 2(2)(e). Minor communal services. The Committee previously 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 recalled, 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). The Committee observed 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". Moreover, there is no provision for consultation in regard to the need of works or services exacted under section 13.

The Committee notes the Government’s explanations concerning measures taken to meet the requirements and needs of the villagers in the course of the exaction of such works. It also notes the Government’s indications in the report that the studies are still being carried out in order to bring the national legislation into conformity with the ILO Conventions and that, in line with the provisions of the Emergency Action Plan launched by the Government in January 2003, the necessary work is under way primarily in the field of democratization and law reform and in the domain of fundamental rights and liberties.

While noting this information with interest, the Committee reiterates its hope 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 soon be able to report on the action taken to this end.