Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

A Government representative recalled that Turkey was amongst the cases of progress regarding Convention No. 111 set out in paragraph 98 of the report of the Committee of Experts. He was somewhat surprised that the case was singled out for discussion by this Committee. With reference to the officials who were dismissed or transferred between 1980 and 1987, the adoption, by the Council of State, of the decision of 7 December 1989, which the Committee of Experts noted with satisfaction, implied that all related jurisprudence had been unified thus bringing to an end the confusion existing in this regard. As a result of this development, all problems linked to the reinstatement and return of those civil servants who had been either dismissed or transferred during martial law had been fully resolved as was also the case with questions of compensation. The ruling of the Council of State continued to be implemented. Note was also taken of the opinion of the Attorney General of the Council of State that Article 4 of Convention No. 111 should be fully observed.

By the terms of section 48 of the Civil Servants' Act No. 657, to be reinstated civil servants were required not to be restricted from their civic rights. This requirement was linked to section 31 of the Turkish Penal Code, according to which restriction from civic rights could be either permanent or temporary. Imprisonment for a period exceeding five years resulted in permanent restriction from civic rights. Imprisonment for a period between three and five years, on the other hand, resulted in temporary restriction of civic rights for the duration of the sentence. The Penal Code also included provisions allowing the lifting of this restriction under defined conditions. The expression "not to be restricted from civic rights" contained in the above-mentioned section 48, meant not having been sentenced under the pertinent provisions of the Penal Law. Those officials whose demands for reinstatement had been denied could always appeal directly to a court to request removal of the restrictions imposed on them, in accordance with the provisions of the Penal Code. The majority of people who had been affected by such sentences had now been restored their rights since Act No. 3713, which came into effect on 12 May 1991, had nullified the offences that had been the subjects of these sentences. These persons could therefore be reinstated. Any person who considered themselves to have been subjected to unfair treatment could, furthermore, appeal to the Commission of Human Rights established by Parliament. No one in Turkey could therefore claim that their rights to file a complaint were denied. The information submitted to the Committee of Experts referred to 358 officials whose reinstatement had been denied. Since the new legislation had come into effect, this number had been reduced to 197. It was not possible to reinstate these public servants, because, in conformity with the Penal Code, they had either been restricted from civic rights or convicted for degrading offences such as bribery, theft, embezzlement and fraud as enumerated in Act No. 657.

Of the 72 university faculty members who had requested reinstatement, 68 had been granted return to their former positions as a result of the measures taken and, in particular, of the creation of extra posts as set out in the decision by the Council of State. Of the remaining four faculty members who had been denied reinstatement, the first had lost his qualifications as a civil servant; the court had ruled against the reinstatement of the second; the third had not completed the necessary documents; and the fourth had already reached retirement. There was, therefore, not a single faculty member who had not been reinstated due to lack of additional posts. The Government representative also recalled that all obstacles preventing the return of people who had been transferred to other regions had been removed since the lifting of martial law. Some had been able to return to the posts that they previously occupied by means of normal legal procedures, others through the Council of State ruling and yet others by direct applications. There was thus no outstanding demand or appeal. Reinstated people had been fully compensated. With respect to the amendment of Act No. 1402, in the ongoing legislative process, every effort was being made to take into account the principles mentioned in the Report of the Committee of Experts as well as those in the ruling of the Council of State. The Minister of Labour had once again made a written request to the Chairman and Members of the Parliamentary Justice Committee that these principles be taken into consideration in amending this Act. Another significant development was the establishment, in the Parliament, of the Human Rights Commission set up by means of Act No. 3686 of 5 December 1990. This Commission had begun to review Act No. 1402. Furthermore, a subcommittee of the Human Rights Commission had submitted its opinion to the Justice Committee that, in amending the law, international principles of human rights should be taken into consideration. The Government representative expressed his strong conviction that as a result of these developments the final Bill which would amend Act No. 1402 would include the opinions expressed in the ruling of the Council of State.

Referring to the question of whether the decisions of the Appraisal Commission, set up by section 15 of the Security Investigation Regulation, were subject to appeal, the Government representative declared that there was no doubt that any administrative measure could form the subject of an appeal and that all legal processes were available for this purpose. This was a fundamental provision stipulated in the Constitution. It was therefore not necessary to include an additional provision in the rules for appeal procedures.

Taking into consideration the fact that freedom of opinion and the right to organise without recourse to violent methods was safeguarded by Act No. 3713 of 12 May 1991, the related provisions stipulated in subparagraphs (E), (F) and (J) of section 3 of the Security Investigation Regulation of 1990 established adequate criteria which would be binding on the administrative and legal authorities. Archive research and security investigation were only conducted for certain persons specified in the Regulations and according to objective criteria. There was always a guaranteed right of appeal and the practises of archive research and security investigation were subject to legal review. Moreover, Act No. 3713 had endowed the provisions of the Regulation with greater objectivity and no appeal had been made against the said Regulation so far.

The President of the Committee recalled that the fact that the Committee of Experts had mentioned a case amongst the cases of progress did not prevent this Committee from discussing it in turn so that it might itself take note of the progress accomplished.

The Employers' members thanked the Government representative for this extremely detailed information which described positive developments even though the decision of the Council of State could have had even more positive consequences in terms of the measures taken to resolve situations stemming from martial law. Statistics had been communicated with regard to people who had been reinstated, those who had not, and those who wished to be so. In this regard it should be asked what motives underlay the denials of reinstatement and what legal paths were open to those people who had not been reinstated. Based on the information given by the Government representative, a large number of these people could not be reinstated because they had been convicted. It was interesting that virtually all the university professors had regained their posts. Information was also provided on the compensation of losses suffered by people who had been dismissed or transferred. All of these details should be communicated in written form by the Government so that the Committee of Experts could examine them. With regard to the proposed amendments to Act No. 1402, the Committee of Experts stressed that the bill would not prevent measures affecting employment from being taken against people considered harmful or undesirable in respect of state security. The Committee also requested that definitions aimed at protecting security of employment be sufficiently well defined in the new version of this Act and that a means of appeal be provided for. According to the Government representative, the recently created parliamentary Commission of Human Rights would play an effective role in amending the Act and, in this context, the result of the measures that would be taken were awaited.

With regard to the Regulation of 1990 on security investigations, the Committee of Experts considered that the range of people who could be subject to such measures was too broadly defined and that sufficiently precise criteria had not been laid down. It was perfectly normal that security measures be provided for so long as their scope of application be precisely defined. The right to appeal was equally important. In this regard the Government representative should indicate the measures adopted so that those people concerned could be informed of investigations conducted concerning them in such a manner as to allow them to make use of the right to appeal. Since the regulation was recent, it must be seen how in the future it would be applied in practice. The Employers' members considered that this case clearly demonstrated that the consequences of martial law were lengthy to alter. It must be stated that Turkey had already invested effort in remedying the situation created by martial law and it could be hoped that information would be provided in the future which would testify to the improvement of the situation.

The Workers' members emphasised that in spite of new developments and certain legislative changes, this was an extremely serious case. It was the work of this Committee to monitor the situation not only in terms of the law but also in terms of practice. Although the Government representative had provided much information and that some signs of progress could be seen in certain areas, a considerable amount still remained to be done. With reference to public servants denied reinstatement, further information on the remaining cases should be provided, giving specific grounds for denial of reinstatement. Information should still be supplied relating to instances where officials had not been reinstated, giving specific reasons for the denial. The case of those people who has been transferred to other regions was also evoked. The Committee of Experts had asked for specific information and statistics on the number of persons who had returned to their previous regions and positions, as well as questions concerning their compensation. It was not enough to state that appeals machinery existed, but it was also necessary to supply information on the manner in which this machinery was implemented and, in particular, statistical information. The Workers' members expressed disappointment over the delay in amending Act No. 1402, although they were aware that there was a Bill pending in the National Assembly. According to the Government representative, once the new law was enacted it would be in conformity with international human rights principles. It seemed none the less that the measures embodied in the Bill and intended to safeguard the security of the State were not sufficiently well defined. For this reason the Government and the Parliament should take into consideration the comments made by the Committee of Experts on this question. It was suggested that the Bill be submitted for consideration by the Committee of Experts to ensure that it was in full conformity with the particular principles contained in the Convention.

Like the Employers' members, the Workers' members were not altogether satisfied with the information supplied by the Government representative on the matter of security investigation. No information appeared to have been supplied which responded to the questions raised by the Committee of Experts. The Committee had expressed concern over the extremely wide definition given to persons forming the subject of security investigations. It was requested that a clearer definition of these persons be given, in conformity with the Convention. Moreover, it was absolutely essential that these people be adequately informed and that they should have a right of appeal. In this context, the Committee of Experts recalled that paragraphs 135 and 136 of its 1988 General Survey embodied the views of this Committee and the principles which should be applied in this case. Lastly, the Workers' members insisted that the Government should provide the detailed information requested by the Committee of Experts to indicate the extent to which the security investigation reports were prepared and used in employment and other relevant decisions.

The Workers' member of Norway, speaking also on behalf of the Workers' delegations of Sweden and Finland, recalled that the measures taken in the application of martial law with regard to the political opinion of public servants was amongst those used in dictatorships, whether based on capital or on a one-party system. He also stressed that with regard to clarifications requested by the Committee of Experts over the reinstatement of civil servants and, notably, the requirement "not to be restricted from civic rights", that information on the kind of civic rights referred to had not been supplied. He regretted the possibility of the wide use of investigations of civil servants in all ministries and public institutions in Turkey. Although it was understandable that certain civil servants with access to classified documents should be subjected to security investigation, the extension of this practice to all civil servants was obviously in contradiction of Convention No. 111.

The Workers' member of Spain declared that the case of Turkey was particularly serious. It was true that, as indicated by the Employers' members, it was much easier to impose martial law than to rectify its consequences, however, history demonstrated that, given real political will to lift martial law, its consequences could be very quickly eliminated. Since martial law aimed to restrict or suppress freedoms, it was not easy to rectify the situation if the same regime which had imposed it remained in place. In the case of Turkey, it was the current regime which had declared martial law and which was therefore responsible for the situation which now prevailed. In the opinion of the Attorney-General of the Council of State, people affected by the decisions taken by the martial law commanders did not have the right of recourse or the right of appeal to administrative courts; such a situation was in blatant contradiction with the notion of a legal State. The Attorney-General of the Council of State had found that the authority conferred on commanders under martial law to protect state security was not clearly defined by law. In a state of law, this was an equally unacceptable situation.

The Government representative underlined the progress achieved so far and disagreed with the statements that a considerable amount still remained to be done. Even if a few measures could still be taken, those already adopted were in the right direction. Since 1987 martial law had not been in place. The current discussion was therefore focused on the residual consequences of the law and on the progress achieved in this area. A distinction should be made between steps taken by the Government and those adopted by Parliament. The Government had put a bill before the Parliament which was currently being examined. Extremely positive inputs had already been made. The Government sought to assist the Parliament in its deliberations so that these concerns could be dealt with. The process was now in the hands of Parliament. The speaker also recalled that the new Act No. 3713 which came into effect on 12 May 1991 had annulled sections 141, 142 ane 163 of the Penal Code. Any concerns expressed by this Committee should be dissipated by the information he had supplied and, with the new legislation, discrimination on the basis of political opinion would be eliminated. After recalling the details he had provided on the reinstatement of various public servants and faculty members, he esteemed that virtually all problems in this area had been resolved. He stressed yet again that the Bill intended to amend Act No. 1402 would contain the opinion expressed in the Council of State ruling, which was in accordance with the Convention and with fundamental human rights. He also referred again to the work of the Commission on Human Rights, recently created by Parliament. The elaboration of this legislative process was a positive development the outcome of which was now awaited. His country was on the right path and genuine progress had already been accomplished.

The Workers' member of Germany thanked the Government representative for providing such detailed information. He was pleased to note that many of the people who had been forcibly transferred to other regions had been allowed to return to their place of origin. The Committee must, however, examine in depth the issue fully with regard to both the present and future situation. The case would not be closed until all of these people had returned to their homes, their post or their place of work and that all necessary compensation had been paid to the victims of martial law. It was indeed a case of progress but could not be considered to be a final solution.

The Workers' members declared that they could not agree with the Government representative that little remained to be done. Progress was always slow and difficult. Martial law was indeed no longer imposed, but the laws and procedures applied in that period were still in force and would be until the definitive amendment of Act No. 1402. New legislation should be submitted to the Committee of Experts for consideration. They expressed a strong hope that the bill intended to amend Act No. 1402 would reflect the concerns expressed by the Committee of Experts. They urged the Government to submit these bills to the ILO without delay so that their conformity with the Convention could be assessed.

The Committee noted with interest the detailed information supplied by the Government representative and the report of the Committee of Experts. It also noted with interest that several legislative measures had been taken and legal rulings made to ensure the implementation of the Convention. The Committee expressed the strong hope that the Government would adopt all the necessary additional measures without delay and that it would continue in its efforts to ensure full conformity, in legislation and in practice, with the Convention. It was hoped that the Government would supply the detailed information requested by the supervisory bodies of the ILO concerning the progress made.

Individual Case (CAS) - Discussion: 1990, Publication: 77th ILC session (1990)

A Government representative recalled that the application of this Convention in Turkey had been brought to the attention of the Committee mainly because of the enforcement of the Martial Law Act No. 1402 during the period 1980-1987. That law was no longer in effect and the Government was engaged in a process of rectifying the residual consequences of its enforcement. The Committee of Experts had received the Government's report containing information on progress achieved in solving many of the issues raised to date, but it could not make a detailed examination until a translation of the documentation appended to that report was available. Consequently, in view of the importance attached by the present Committee to the case, he wanted to provide it with the necessary information, particularly with respect to the specific points raised by the Committee of Experts.

The first point related to the reinstatement and return of public servants dismissed or transferred during the period of martial law. Significant progress had been achieved in this regard under the Council of State ruling of 7 December 1989. That ruling had rendered ineffective the provision of Martial Law Act No. 1402 which had prohibited indefinitely the re-employment in the public service of dismissed public servants, by confining its application to the period when martial law had been in force. Consequently, since martial law was no longer in effect, those who had been thereby affected were now allowed to return to their previous duties, provided that there were no other legal impediments. By virtue of section 40 of Act No. 2575 concerning the Council of State, the above-mentioned ruling was binding on the administration and administrative tribunals. The Council of State ruling did not apply solely to faculty members of the universities, but to all public servants. The Committee of Experts appeared to have the erroneous impression that public servants outside the universities were excluded from the Council of State's ruling and that they were thus victims of discrimination. In fact, the Council of State's ruling applied to all public servants equally. As regarded the return to their previous positions of persons who had been transferred to other regions under martial law, he stated unequivocally that, by virtue of the same Council of State ruling and since martial law had been lifted, no obstacles remained to prevent those persons from returning to their place of origin. In any case, Martial Law Act No. 1402 had contained no provision which stipulated that such persons could not return to their place of origin once martial law was lifted. In other words, those persons were transferred to other regions only for the duration of martial law, since it was considered harmful for them to remain in the region where martial law was enforced. The limitations imposed on those persons were restricted in terms of region and of time; once martial law was lifted, so too were the limitations. To date, no information had reached the Government as to any transferred person ever having had a problem in returning to his place of origin. The Committee of Experts had requested the Government to provide precise statistical data on the number of public servants who had been reinstated or enabled to return from regions to which they had been transferred, as well as information on the status of persons who were still considered "harmful". According to official records, a total of 9,400 public servants had been affected, 4,530 having been dismissed and 4, 870 transferred. It was almost impossible to come up with exact figures for the current situation but, based on data available as at 15 May 1990, of the 4,530 public servants who had been dismissed, over 4,000 had been reinstated. It was not possible to give a precise count for the other dismissed persons who numbered less than 300. Some of them had not applied for reinstatement at all; many had reached retirement age; some were deceased; others had lost the required faculties for employment (e.g., because of physical incapacity or health considerations); and some of those who had applied had been rejected on grounds of having lost their qualifications for employment in the public service because criminal proceedings were pending against them. What was important, however, was that not a single case had been reported, after the coming into effect of the above-mentioned Council of State ruling, of an application for reinstatement being rejected on the ground of a person being considered "harmful". Moreover, the ruling also made it possible for those rejected in the past on such grounds to apply once again to administrative tribunals so as to regain their rights. In more specific terms, it was no longer possible for a person to be barred from reinstatement exclusively for having been deemed "harmful" during the martial law period. There had been many cases of rights being restored through such a procedure. Indeed, 90 per cent of those dismissed during the martial law period had now been reinstated. The Committee of Experts had also sought information on the steps taken to recognise the rights of those concerned, arising out of their previous service, on matters of compensation for loss of earnings and other benefits during the period of their exclusion from employment or transfer. All public servants who had applied for reinstatement had the right to request the recognition of their rights as outlined, including compensation for loss of earnings and other benefits, within the framework of the existing general provisions of the law. Provided that the competent courts passed judgement in their favour, they became eligible for compensation and restoration of all benefits and rights with respect to their past employment, as determined by the courts. Such a court decision was necessary for administrative and general accounting purposes. As to the request of the Committee of Experts for information on what other kinds of legal impediments constituted a bar to reinstatement, and on the number of persons whose reinstatement had been refused on such grounds, he pointed out that, according to available information, there were less than 300 such persons. He referred to his earlier remarks on certain situations which barred reinstatement and noted that similar standard provisions existed in the laws of other countries.

The second point raised by the Committee of Experts related to the proposed amendments to Act No. 1402 on martial law. The bill to amend Act No. 1402 was still pending in the Turkish Grand National Assembly. The Minister of Labour had sent a written communication to the Chairman of the Justice Committee of the Grand National Assembly recalling that Turkey had ratified the Convention and that, as such, the Convention had now become an integral part of the national legislation. Accordingly, it was incumbent upon the Justice Committee to take into consideration the pertinent articles of the Convention in the process of amending Act No. 1402. In her letter, the Minister had made a particular effort to emphasise that the provisions of martial law should be based on objective criteria, that it should envisage a proper judicial review mechanism, and that the measures intended to safeguard the security of the State should be sufficiently well defined and delimited in order not to lead to any discrimination. That initiative on the part of the Ministry of Labour was a clear indication of the importance it attached to ILO standards. The Ministry of Labour was determined to continue its efforts for the adoption of non-controversial legislation in that respect.

Finally, the third point raised by the Committee of Experts concerned the Regulations on security investigations regarding key public servants. The existing Regulations had been held to be invalid, on grounds of formal defect, in a recent decision by the Council of State. The Committee of Experts had expressed the wish that, in addition to the above-mentioned decision, information be provided on any new regulations which might have been adopted, as well as on the measures taken to ensure the observance of the Convention in that respect. New Regulations had been published on 13 April 1990. As to their content, it was worth noting that every country reserved the right to conduct security investigations of candidates for key public service posts before their recruitment. There were no exceptions to that rule. Each country conducted such security investigations according to its own needs and circumstances. The new Regulations did not contain any provision going beyond their stated objective. Since the Regulations had only recently been published, it had not been possible to provide a copy to the Committee of Experts before its meeting. The new Regulations would, of course, appear in the Government's next report to the Committee of Experts.

A Workers' member of Turkey expressed his dissatisfaction regarding the situation prevailing in Turkey with repect to the application of the Convention. Firstly, the ruling of the Council of State concerning compensation of dismissed public servants had not yet been applied because no government instructions had been given to that effect. Secondly, while welcoming the fact that the amendments criticised by the Committee of Experts had been withdrawn, the question arose as to whether Act. No. 1402 remained in force, when the new amended draft law would be submitted to Parliament and what its content would be. Moreover, the circular sent to University Deans by the Higher Education Board concerning the reinstatement of dismissed faculty members had not had any effect because there were no vacancies. The persons concerned would have to wait until vacancies arose. Finally, although the Regulations on security investigations had been withdrawn, they had been replaced two months later by other, almost identical, Regulations.

A Workers' member of the United Kingdom stated that the letter sent by the Minister of Labour was an interesting initiative but that practical results were what was important, that is to say the repeal or amendment of the provisions of Act No. 1402 that were not in conformity with the requirements of the Convention. Concerning security investigations, in general such retting was only carried out for some specific so-called "sensitive" jobs; regulations providing for such investigation of all public servants would not be in conformity with the Convention. It would therefore be useful to have details on the scope of the new Regulations on security investigations.

A Workers' member of Norway considered that the information provided by the Government representative was not clear enough. Given that the Council of State ruling of 7 December 1989 had not been applied, it was important to know when the Government would give formal instructions to ensure the effective reinstatement of dismissed public servants. The same question arose regarding the reinstatement of dismissed faculty members, in accordance with the Higher Education Board circular. In addition, details should be provided on the measures that the Government intended to take to recognise the rights of dismissed persons arising from their previous service and to compensate them for loss of earnings and other benefits during their period of dismissal. Finally, the content of the new Regulations on security investigations should be clarified, and information provided on whether the text had been sent to the ILO.

A Workers' member of the Netherlands stated that the case had had a long history. It was a matter of honour for the Government of Turkey to show diligence concerning the question under discussion, but it appeared that the Government had not understood the importance that the Committee of Experts attached to the queries raised. As earlier speakers had pointed out, the information given by the Government representative was quite confused, both regarding the new draft law to amend Act No. 1402 and regarding the application of the Council of State ruling of 7 December 1989 and the content of the new Regulations on security investigations. All those points should be clarified.

The Employers' members noted that the case dealt with the elimination of the consequences of martial law and that this question had already been examined several times before, as well as being mentioned in a special paragraph of the present Committee's report. As the Committee of Experts had not been able to examine the Government's report in detail, it would be appropriate to await its observations before taking a position, but a preliminary assessment could already be made in the light of the information provided by the Government representative. Concerning the reinstatement of dismissed persons, they noted the Council of State ruling and the Government representative's statement to the effect that this ruling covered all public servants and was to be observed throughout the administration. The Government should also provide the specific statistical data requested by the Committee of Experts on the number of public servants reinstated and on the compensation paid to them in order to allow an opinion to be reached on this. Regarding the amendments proposed to Act No. 1402 and, in particular, the question of employment restrictions imposed on persons considered "harmful or undesirable in respect of state security", everything still depended on the final content of those amendments. The Committee of Experts was waiting for the text which it would have to study closely because it would be a question of drawing a reasonable and acceptable line between the requirement of a minimum of loyalty from public servants and political discrimination. The same comments applied to the new Regulations on security investigations; if necessary, the question should be re-examined by the present Committee on the basis of the texts provided. In any event, the victims of martial law should be reinstated and should receive compensation. The process of returning to a normal situation was taking a long time but positive developments were taking place and care should be taken in order to ensure that this continued. The important questions raised by the Workers' member of Turkey merited a reply, but it was important that the Committee of Experts first considered the report and the texts provided by the Government in detail so that the present Committee could reach conclusions in full knowledge of the facts.

The Government representative, replying to the comments of previous speakers, repeated that the Ministry of Labour's communication had been sent to the Chairman of the Justice Committee of the Grand National Assembly to draw his attention to the Convention and to the observations of the Committee of Experts. Moreover, the process of amending Act No. 1402 obeyed the rules of democracy. Different views had to be taken into consideration and reconciled, as well as the Council of State's ruling of 7 December 1989, in order to arrive at a draft law acceptable to all. His Government would do everything in its power to achieve that goal. Furthermore, the above-mentioned Council of State ruling did not require any circular to have binding force; it took immediate effect for the whole administration and the administrative tribunals. The circular issued by the Higher Education Board to University Deans concerning that ruling was an internal administrative measure to explain how to apply the Council of State ruling. The Government did not know of any case in which that ruling had not been applied or which had caused difficulties. As for the new Regulations on security investigations, the text would be sent to the Committee of Experts for examination in the very near future. This Committee could then discuss the matter in the light of the Committee of Experts' observations. Finally, concerning compensation for loss of earnings and other benefits, the victims had to file suit before the courts and each case would be examined individually. There had been judgements handed down in favour of plaintiffs, providing tangible proof that real progress had been made in that area.

A Workers' member of the Netherlands stated that it appeared from the report of the Committee of Experts and the information given by the Government representative that progress was only in the process of being achieved, but that nothing substantial was yet visible.

A Workers' member of Greece, referring to the present Committee's conclusions in 1989, asked why the restoration of the workers' rights was taking such a long time within the framework of re-establishing democracy. The Turkish Government formed following the elections had long ago promised to conform with the provisions of the Convention. In addition, the Government representative had not made any reference to the information transmitted by the Confederation of Turkish Trade Unions, mentioned in the Committee of Experts' report, and according to which 4,125 of the public servants who had been dismissed were still considered "harmful". The present Committee should again express its grave concern regarding the application of the Convention in Turkey.

A Workers' member of the United Kingdom recalled that this Committee had been trying since 1987 to bring Turkish legislation into conformity with the Convention. That should be seen in the context of the speed with which some Eastern European countries, that had just embarked upon a democratic process, had been able to report on the abolition of repressive laws, in particular in the field of labour legislation, to the present Committee.

The Government representative maintained that progress achieved was quite visible and that the process of rectifying the situation had been accelerated. In the first place, the Council of State ruling took precedence over all lower tribunals. That ruling had resulted in the reinstatement of over 4,000 people, or 90 per cent of those who had been dismissed. If that was not visible progress, what was? In the second place, the Minister of Labour had sent a letter to the Justice Committee of the Grand National Assembly specifically and firmly drawing its attention to the Convention and to the observation of the ILO. That also was a visible factor. In the third place, although nearly 300 persons had not been reinstated, none of them had not been reinstated because of being considered "harmful". Some of them had died, others had retired or were no longer able to work and yet others had been taken to court for infringements other than those linked to martial law. No one had had any difficulty in returning to his place of origin. Those also were visible factors.

The Workers' members, in view of the conclusions in the special paragraph of the 1989 report of the present Committee, regretted that the Government's report had arrived too late to be considered in detail by the Committee of Experts. The information provided by the Government representative and the few signs of progress that could be noted were admittedly appreciable, but questions and doubts remained on the three points under discussion. First, full and accurate statistical data were still lacking on the number of public servants reinstated and given compensation. The significance of the phrase "provided that there were no other legal impediments" ought to be clarified. Secondly, concerning the draft law to amend Act No. 1402, it was not yet known whether the new legislation would prevent measures being taken affecting the employment of persons considered "harmful or undesirable in respect of state security", in conformity with the observations of the Committee of Experts. Thirdly, questions regarding the scope of the new Regulations on security investigations remained outstanding. The present Committee should thus again express its concern and stress the need to receive full reports as rapidly as possible so that the Committee of Experts could study the measures that had been taken, not merely the intentions.

The Government representative stated that it was impossible to provide absolutely precise statistical data because some cases were still being considered before the Courts. The latest data was based on 15 May 1990. The Committee should, moreover, be patient and give the Committee of Experts time to examine the new Regulations on security investigations which had just been adopted. In conclusion, he again gave the assurance that the letter from the Ministry of Labour to the Chairman of the Justice Committee of the Grand National Assembly contained provisions relevant to Convention No. 111 and the observations of the Committee of Experts.

The Committee noted the detailed information by the Government. Based on the concern it had expressed last year and which it partially felt this year, it felt the need for further information from the Government in order to make a full assessment of the legislative provisions and their practical implementation with regard to their conformity with this Convention. It therefore expressed the firm hope that the Government would be in a position to communicate to the ILO supervisory bodies as soon as possible the texts of the new provisions adopted and judgements rendered, as well as of measures under consideration.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative stated. first, that Martial Law No. 1402 was enacted to govern certain cases under exceptional circumstances only; secondly, that martial law was not in force in any part of Turkey since 19 July 1987 and, thirdly, that the Government had committed itself to removing some of the shortcomings of this Law and had in fact recently introduced a Bill to the Parliament. This Bill, which was presently debated at the Parliament, aimed at improving some of the provisions of existing legislation. particularly by restricting certain aspects of the powers of the martial laws commanders.

The Government would be happy to supply to the Committee of Experts the final version of this Bill at the time of its response to the Committee of Expert's report, as well as the texts of judgments concerning the reinstatement of persons dismissed under the provisions of Martial Law No. 1402. The Government was unable to discuss at this moment a text which was at the present undergoing legislative process but took note of the observations made by the Committee of Experts on this issue.

The Worker member of Norway, speaking on behalf of the Finnish, Danish, Swedish and Norwegian national trade unions endorsed what had already been said by the Worker member of Turkey on Convention No. 98.

In the present case, the enforcement of the Martial Law and regulations had resulted, since the coup of September 1980, in the dismissing or transferring approximately 8,500 persons including university lecturers, school-teachers, civil servants, workers in public enterprises and public employees. The discrimination against civil servants and public employees still continued all over the country and the persons who had been considered undesirable were prohibited to undertake any job whatsoever in public service or state enterprises for the rest of their lives. These sanctions were not issued by the judiciary but through arbitrary administrative decisions.

The new Bill introduced in Parliament would restrict the powers of martial law commanders but the criteria on which dismissals or transfers could take place are still not strictly defined. The regulations for security investigations were still applied, without any judicial supervision, to collect information from public employees and civil servants about political opinions. This kind of intelligence service could not be justified in any State committed to the obligations established by the ILO Constitution and Convention No. 111.

The Finnish, Danish, Norwegian and Swedish trade unions urged the present Committee to appeal to the Government of Turkey to bring an end to all discrimination against civil servants and public employees by reason of their political opinions.

The Workers' members deplored the fact that, although martial law had been repealed on 15 July 1987, the situation remained the same as regards Convention No. 111. They recalled that during the state of emergency, certain exceptional disciplinary sanctions had been taken and noted, as did the Committee of Experts, that these are still applied. They noted that the draft legislation now should bring about certain improvements, even though the Turkish Confederation of Trade Unions (TURK-IS) and the Committee of Experts had certain doubts as to its contents but that, for the time being, the situation remained unchanged.

They recalled that they had already asked that the thousands of dismissed employees, who would forever be prohibited from working in the public service, be reinstated in their employment with compensation, after a fair trial. They also noted that, in spite of the repeated requests of the Committee of Experts, the Government still had not provided copies of any judgments. In the absence of information by the Government, it was necessary to refer to the information provided by the Turkish Confederation of Trade Unions and noted with regret that the Turkish Government did not apply Convention No. 111 which it had ratified.

The Workers members of Turkey stated that, as mentioned by the Committee of Experts, under Section 2 of Martial Law No. 1402, the competent authorities had to execute immediately every request of the martial law commanders to transfer or dismiss officials whose services were considered harmful for general security, law and order or public safety. The Turkish Government had been requested many times to take measures to repeal or amend these provisions so as to ensure that transfers or dismissals could only take place on the basis of clearly defined criteria; this case had also been the subject of a direct contacts mission, but to no avail. From September 1980 until the lifting of martial law, many people had been dismissed from public service in all the regions in Turkey through the implementation of the Act. In determining the element of harmfulness, various unreliable sources of information were used; security investigation reports of the National Intelligence Agency and of police, as well as informers and slanderers. This information was based on hearsay and biased political assessment. Furthermore, since it was considered confidential and not made available to the persons concerned, there were no means to correct or clarify them. The victims of this unacceptable practice had been 95 university lecturers, 2,515 school-teachers, 1,298 civil servants and 317 workers; some 4,000 of these were dismissed and about 4,509 public employees were transferred. Some of these had been reinstated but most had not. The Bill presented to Parliament was far from satisfactory since it retained the powers granted to martial law commanders, although it limited the duration of dismissal or transfer measures to the martial law period and provided that the persons concerned could apply for a re-investigation. Unfortunately, the Bill did not define or restrict the measures intended to ensure the security of the State, for instance by strictly defining the criteria on which dismissals and transfers could be based. This Bill, in fact, aimed at destroying all the positive results obtained through the courts. In addition, those who had been reinstated would not obtain a financial compensation for the wages or other benefits lost in the period during which they remained without employment. The Bill would not bring about progress nor solve the existing problems.

The speaker concluded his remarks by stating that although Turkey had ratified the European Social Charter, it had expressed reservations as to freedom of association and to the right to bargain collectively.

The Worker member of Spain stated that, since the Bill modifying the martial law maintained the powers granted to martial law commanders during the state of siege to ask the dismissal or transfer of public servants, it was impossible to note progress in the application of the Convention. The possibility of appealing to the courts or to other competent authorities or, as provided by the Bill, to ask a re-examination of the case, did not constitute a real guarantee since the public authorities would probably continue to apply the existing legislation of giving effect to Convention No. 111. Consequently, the legislation should absolutely be modified so that the military authorities would not continue to apply these provisions. He referred to the Resolution about union rights and their relation to the civil liberties adopted in 1970 by the Conference, among which are the rights established by Convention No. 111. The speaker emphasised that the only way to solve the problem of the dismissals and transfers of public servants would be to proclaim an amnesty, that is to reinstate all the persons concerned in the employment they had before their discriminatory dismissal or transfer, so that they could again enjoy all their rights.

The Employers' members pointed out that this case raised the issue of martial law, which was not directly within the ILO jurisdiction. They could only note the situation and the consequences of the state of emergency, while deploring that a country had to take such measures.

During the state of emergency, the martial law commanders had the right to dismiss or transfer public servants in so far as national security was threatened. The draft legislation presently being prepared should allow to reduce the period of application of dismissal measures; it should improve the situation since, according to the Committee of Experts, the alleged motives of dismissal were not always linked to the security of the country.

The Employers' members supported the Committee of Experts in requesting the Government to provide further information on this issue and on any amendments to martial law it would consider adopting. They noted the wish expressed by the Committee of Experts that dismissed public servants should enjoy the right to appeal and to ask the re-examination of their case. They could not understand the Government representative's statement that he was not able to provide the information requested on the Bill which had just been tabled in Parliament. They noted that in its last three reports, the Committee on Freedom of Association had pointed out that Turkey had always submitted the information requested. Once again, they trusted that the Government would act rapidly as soon as the circumstances would make it possible. They expressed the wish that the Committee's conclusions would reflect its hope that the consequences of the state of emergency would disappear and that the Turkish society would be freed from all political pressures.

The Government representative stated that the Government was requested to provide information and to take some legislative measures. Concerning the first request. the Government would provide information in the shortest time possible; as to the second one, the Government could not do anything more than drafting a Bill and submitting it to Parliament, which had been done in February 1989. The Bill had already gone through the Committee of National Defence and had yet to go through the Committees of Justice and Constitution, and then to the plenary session of Parliament. The Government clearly was not in a position to pass any judgment on this Bill at such premature a stage.

The Government representative concluded his remarks by stating that under article 125 of the Turkish Constitution, all Acts of the Government were open to judicial review. Moreover, the courts had decided to reinstate 3,406 persons out of 4,891, i.e. 70 per cent of all the persons in question here.

The Government representative expressed his regret that the last conclusions of the present Committee with respect to Turkey were entirely disproportionate, compared to the conclusions reached by it concerning other countries. The conclusions concerning Turkey were not only disproportionate from the standpoint of the compatibility of national practices to ILO standards, but also unproductive in terms of serving the general goals of the present Committee. Furthermore, the Government did not agree with the points raised by the Workers' and Employers' delegates in placing Turkey in a special paragraph.

The Committee has taken note of the information given by the Government representative and the various opinions and comments expressed during the discussion. The Committee noted the conclusions of the Committee of Experts, according to which there subsisted both in law and practice profound divergencies concerning the full implementation of the Convention. The Committee expressed the firm hope that the contemplated revision of certain articles of Martial Law No. 1402 duly would take into account the observations of the ILO supervisory bodies and that the Government would continue its efforts so that measures to guarantee the security of the State be defined and restricted in such a fashion that they would no longer entail any discrimination based on political opinion. The Committee trusted that the Government would submit in the near future all the information requested to allow the Committee to verify whether the Convention was implemented and real progress accomplished.

On a proposal of the Workers' members, supported by the Employers' members, the Committee decided to mention this case in a special paragraph of its report.

The Government representative expressed his regret that the last conclusions of the present Committee with respect to Turkey were entirely disproportionate, compared to the conclusions reached by it concerning other countries. The conclusions concerning Turkey were not only disproportionate from the standpoint of the compatibility of national practices to ILO standards, but also unproductive in terms of serving the general goals of the present Committee. Furthermore, the Government did not agree with the points raised by the Workers' and Employers' delegates in placing Turkey in a special paragraph.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

See under Convention No. 98, as follows:

The Government has communicated the following information:

The Government, in following up the objectives mentioned in the letter addressed to the Director-General, dated 30 April 1986, from the former Minister of Labour and Social Security, has given serious consideration to the matters related to industrial relations in Turkey.

In this connection, as a result of the consultations which were undertaken by the Government firstly with the other social partners and subsequently with a representative of the Office during a recent consultative technical mission and in the light of the desires expressed both by the workers and employers as well as by the ILO, and by taking into account points both related to these desires and to other factors, the Government has found it necessary to take up this matter anew in a more comprehensive manner in order to amend, in accordance with the changed national conditions, the Trade Unions Act No. 2821 and the Collective Bargaining, Strikes and Lock-out Act No. 2822. To this effect, it would naturally be necessary to consider certain provisions of the Constitution.

The Government is of the view that all necessary measures should be taken to realise a labour legislation in full conformity with ILO principles and standards. To this end the Government will engage again in meaningful tripartite consultations in Turkey. The Government also hopes to be able to benefit from the technical advice that may be rendered by the Office in this regard.

The Government intends to commence this exercise immediately and hopes that it will be concluded in the shortest possible time, provided that all the parties concerned fully and constructively participate in it, and an appropriate possibility of a legislative process be available.

In addition, a Government representative referred to the written information communicated by his Government and stated that the remarks formulated by the Committee of Experts with regard to the Convention No. 98 had been the object of a detailed examination on a tripartite basis and that a real effort had been made together with the employer's and workers' organisations to ensure better conformity with ILO standards in this field. He added that Act No. 3299 of 3 June 1986 embodied a certain number of amendments to Act No. 2822 of 1983 on the question of collective bargaining, strikes and lock-outs. Technical consultative missions visited Turkey at the invitation of the Government in April 1986 and April 1987 in order to discuss legislative amendments which were under consideration. The Government concluded from this that there were still a certain number of legislative problems, which were due to the fact that the law of 1983 had been adopted during the period of martial law in the 1980s, a period which had justified certain special measures. The political and social situation had improved considerably since then, at the national and international level. As a result the Government considered that all the necessary legislative measures could be and should be taken in order to ensure that the provisions of the labour law were in conformity with the principles and standards of the ILO, and to eliminate any element that was incompatible with either of these. The Government intended to undertake immediately a more thorough re-examination of the question which it hoped to complete as soon as possible, provided all the parties concerned participated fully and in a constructive manner in this process. He pointed out that the Government was also determined to maintain its fruitful co-operation with the ILO so as to endeavour to achieve its objectives.

So far as Convention No. 111 was concerned, the Government representative indicated that the state of emergency under Act No. 1402 would be lifted as from 19 July 1987 in the five provinces in which it was still applied. Independently of the existence of martial law, a certain number of guarantees existed in the national legislation against the risk of discriminating against someone on the basis of their political opinions. Article 10 of the national Constitution provided that everyone is equal before the law regardless of their political opinions and established the principle that the bodies of the State and administrative authorities must act in conformity with the principle of equality before the law. Furthermore, under article 125 of the Constitution, he said that all acts of the administration were subject to appeal. In the light of these provisions, out of a total of 4,530 public officials who had been dismissed, 3,999 cases have thus been re-examined up to today. In the five provinces in which martial law was still applicable, only five officials had been dismissed in the course of the past three years; he added that the last dismissal occurred in February 1986. Application of martial law No. 1402 was thus accompanied by the necessary legal procedures which ensured that its application did not lead to discrimination of a political nature or of any other kind. Furthermore, this law had not been applied since February 1986 and would cease to be in force once the state of emergency was lifted as from 19 July 1987.

The Worker member of Sweden stated that the case of Turkey had been discussed in the Committee for several years. Every time, the Government had committed itself to undertake measures to improve the situation but in reality, very little had been achieved. The exercise of the right to collective bargaining had been made practically impossible because of the exaggerated requirements in the law regarding the representative nature of trade unions and the right to strike, which was limited by a procedure which permitted postponement of a strike for a period of 60 days. This meant that it was extremely difficult to exercise the right to strike. She said that the right to collective bargaining was in fact an extension of the most basic trade union right: namely, freedom of association. The right to bargain collectively could only be fully exercised if workers' and employers' organisations had the basic right to organise their activities and to formulate their own programmes of action without interference from the public authorities. Much also remained to be done in that area. She said that Swedish trade union organisations were deeply worried about the trade union situation in Turkey and they hoped that the necessary legislative amendments would be adopted as soon as possible, so as to ensure the full application of ILO Conventions in the field of freedom of association, the right to bargaining collectively as well as the exercise of the right to strike and of lock-outs.

The Worker member of Greece expressed his agreement with the statement of the Worker member of Sweden, and informed the Committee that one of the Turkish trade union organisations had been banned. Under these conditions, he said that one could not consider that the right to collective bargaining existed freely in Turkey. The Government representative should be requested to provide information about the trials of Turkish trade unionists as well as information about the status of freedom of association in the country.

The Worker member of Turkey insisted upon the fact that the Government has not honoured the promise which it had made in 1986. It was regrettable that no progress had been achieved this year. He said that the technical evaluation mission of the ILO which had visited Turkey in April 1987 had described the general trade union situation in a perfectly clear manner. Acts Nos. 2821 and 2822 concerning trade union organisations, collective bargaining and strikes violated the fundamental rights recognised in Convention No. 98 and were not in conformity with the principle according to which these organisations have the right to organise their own administration and their activities and to formulate their programmes of action freely. The right to establish trade unions or to be members of them was forbidden to public officials, teachers in private schools, people working in religious institutions as well as to students who work. Candidates for trade union office should not have been sentenced for violating the provisions concerning collective bargaining and strikes. He pointed out that it was necessary to have worked for at least ten years before being eligible for trade union office. He added that any kind of political activity was forbidden to trade unionists. This meant automatically that leaders of trade union organisations and confederations could not exercise trade union functions when they accepted a post in the government or in a political party. The authorities had the right to make enquiries from time to time purely at their discretion on the internal affairs of trade union organisations and confederations. Ten per cent of workers occupied in a given branch of activity, as well as more than 50 per cent of workers employed in the establishment or enterprise, had to belong to trade union organisations in order for the right to collective bargaining to exist. Severe restrictions were imposed as far as the right to strike was concerned in several sectors which were not considered as essential services. The Government was entitled to postpone a strike and to submit the conflict to compulsory arbitration to a body controlled by the Government itself. The Government had not only failed to take any measures to give follow-up to the assurances it had given it 1986, but it had further aggravated the situation in extending to public enterprises, the application of Decree No. 2333 concerning private contracts of employment. The workers to whom this Decree applied did not have the right to be members of a trade union organisation or to take advantage of the provisions in collective agreements. Furthermore, three so-called public employers' organisations had been created in 1986 and these represented the State enterprises and public institutions as far as negotiations were concerned. Through these organisations which are managed by public officials, the Government settles everything which would normally be submitted to collective bargaining.

The Worker member of France referred to certain facts which showed that in practice there were severe restrictions on freedom of association, freedom of expression and the right to collective bargaining. In addition, the headquarters of the trade union organisation TURK-IS had been surrounded by the police at a time when about 700 trade unionist activists were assembled there with a view to submitting a petition to Parliament concerning social and political problems. He added that there had been a delay in granting a visa to the President of DISK, a trade union organisation which has been declared illegal, to attend the International Labour Conference. This was a violation of the principle of pluralism and of freedom of association which was not acceptable. The Turkish Government had requested adhesion to the European Economic Community. He pointed out that this was not simply an economic structure, but was also a political entity which required that traditional democratic principles should be applied in its member States. If the Turkish Government wanted to have the support of the European trade union movement in its request for adhesion to the EEC, it was necessary for it to correctly apply the international commitments it had undertaken, and especially to respect the basic Conventions of the ILO.

The Worker member of the United States stated that the information provided by the Worker member of Turkey illustrated the gravity of the actions of the Turkish Government. Section 37 of Law No. 2821 prohibited any kind of political activity on the part of trade union organisations and their confederations, which was in direct contradiction to Article 1 of Convention No. 111.

The Worker member of Norway recalled that the Norwegian Federation of Trade Unions had submitted a representation in 1982 against Turkey with regard to the violation of Convention Nos. 98 and 111 by Turkey. Five years later, Turkish legislation still seriously violated these two basic Conventions. In spite of its promises, the Turkish Government had not yet taken the necessary measures to amend Section 12 of Law No. 2822 which made it necessary for trade unions to satisfy unreasonable standards regarding their representative character before they could exercise the right to engage in collective bargaining. So far as Convention No. 111 was concerned, it was important to recall that, according to international standards on human rights, the establishment or maintenance of martial law was not justified, beyond cases of exceptional emergency which affected the life of the nation. Under these conditions, the maintenance of martial law in Turkey constituted a serious violation of the fundamental human rights recognised in article 15 of the European Convention on Human Rights, as well as in the ILO Constitution and ILO standards, and in particular in Convention No. 111. He stated that the maintenance of martial law could not be cited by the Government as a justification for not complying with the obligations it assumed when it ratified Convention No. 111. Since several years, this legislation had led to serious numerous instances of discrimination against public officials and against candidates for public office. The employees concerned have either been dismissed, transferred or sent to other regions on the basis of criteria that do not ensure a guarantee against discrimination based exclusively on political motives. Consequently, the Committee should express its profound concern about the maintenance of martial law in the five provinces concerned, as the provisions of this law involve serious violations of Convention No. 111 with respect to public officials. He added that the Committee should also note with regret the slow pace of the efforts undertaken to ensure the application of Convention No. 98 at the legislative level.

The Workers' members recalled that the right to collective bargaining was closely linked to freedom of association which was a fundamental principle of the ILO Constitution. Previous declarations showed that blatant violations had been committed in this area. An organisation had been dissolved, trade union leaders had been sentenced and the rights to collective bargaining and freedom of association had been ridiculed. The conditions imposed on trade union organisations if they were to enjoy the right to collective bargaining highlighted the fact that the aim of this policy was to ensure that only one trade union organisation could exist. The Government should not have the right to impose such measures; rather, the decision should be left to trade union leaders. In 1986 the Committee had due to the lack of time, decided not to discuss the case of Turkey but to take account of the written information provided by the Government and the assurances which it had given. The Committee had nevertheless insisted upon the fact that it was waiting to see if the promises given by the Government would be fulfilled as soon as possible in such a way as to enable the Committee to note progress at its following session. It was necessary to recognise that these promises had not been kept. What was even more serious, immediately after the discussion in 1986, the Government had held a press conference to emphasise the fact that the trade union situation in Turkey had not been criticised at the international level and to say that the problems which existed would be settled without external intervention. The Workers' members pointed out that such procedures did not facilitate dialogue and did not make it possible to achieve progress. Today, the Government representative had indicated that martial law would be lifted shortly in a certain number of provinces. In effect, the Government still appeared to want to preserve the possibility of intervening arbitrarily by talking of so-called dangers to the security of the State. In the written information communicated with respect to Convention No. 98, the Government had indicated that it intended to re-examine the question in the most appropriate manner but that it would obviously be necessary to take account of certain provisions of the Constitution. The Workers' members felt that the ambiguity of this remark was embarrassing. It implied that the Turkish Constitution contained provisions contrary to the Convention, or that the Convention as a whole could not be applied. The information provided in the context of Convention No. 111 was also not clear; no worthwhile responses had been provided in reply to the observations of the Committee of Experts. The reply did not show that any concrete progress has been achieved; it spoke only of promises and of declarations of intent. Under these conditions, they pointed out that the Government must take seriously the concerns expressed by the Workers' members.

The Employers' members recalled that, with respect to Convention No. 98, detailed reports had been provided by the Government. Although the Committee of Experts had been able to note with interest the development which had occurred in Turkey, considerable restrictions still limited the right to collective bargaining. With the assistance of the Office these problems had been discussed with the Government. The Government had now indicated that new proposals were under consideration with a view to modifying the legislation. In the light of this, the Government hoped to be able to discuss the details with a new mission from the ILO. It seemed that the Government was on the right track but it would still be desirable for the Government representative to specify if it was really the intention of his Government to take all the necessary measures to ensure that all the points raised by the Committee of Experts would ensure compliance with the Convention. They pointed out that it was also important to underline the fact, as noted in several statements made by the Workers' members, that the situation was, for the moment, still not in conformity with Convention No. 98. So far as Convention No. 111 was concerned, the Employers' members said that it would be desirable for the Government representative to indicate if the decision to lift martial law had been taken officially and if it would be published in the Official Gazette. They added that little information had been provided on the details of measures that had been taken, in particular as regarded dismissals and prison sentences. Further information was necessary since for the moment the situation was not in conformity with the Convention.

The Government representative recalled that a certain number of amendments to law No. 2822 of 1983 had been adopted in 1986 so as to ensure a better application of Convention No. 98, but given the fact that certain points still remain unresolved, the Government had decided to re-examine the question in a detailed manner. He added that this would take a certain amount of time since in a parliamentary system legislative reform did not depend solely upon the Government. It was essential to obtain the agreement of the social partners so as to ensure that a certain awareness existed in Parliament as well as in public opinion. Furthermore, it was necessary to develop a constructive dialogue with the ILO. He pointed out that political, economic and social life had evolved in a positive manner during the past few years which could not fail to have a favourable influence upon industrial relations. The Government was ready to comply with its international obligations and to take the measures necessary to amend its social legislation in such a way as to eliminate any element incompatible with international labour standards. He said that this would be accomplished in a period of time compatible with political, economic and social developments. It was Parliament which had taken the decision to lift martial law in the provinces where it was still applicable, with effect as from 19 July 1987. There would therefore no longer be any unresolved questions under Convention No. 111. So far as the demonstration organised by the Confederation of Turkish Trade Unions was concerned it should have requested prior permission, which it had never done. It was therefore normal that complications had ensued. His Government was conscious of the fact that in order to be able to adhere to the EEC, it would have to conform to the standards which prevailed in that organisation. Finally, a law of general amnesty had been submitted to Parliament. Parliament had adopted a law which permitted a certain reduction in prison sentences.

The Committee took note of the information communicated by the Government and its representative. It expressed its concern with regard to the serious divergencies which still existed between the national legislation and practice and Convention Nos. 98 and 111, in spite of the promises which had been made by the Government on several occasions. The Committee expressed the hope that these promises would be fulfilled in the very near future and that it would be able to note progress at its next session. If this was not the case, the Committee would be obliged to have recourse to other means with a view to ensuring conformity with the Conventions.

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

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

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Articles 1 and 2 of the Convention. Sexual harassment. The Committee notes that according to the Government’s report, 1,071 convictions were pronounced in 2007 regarding section 105 of the Penal Code which makes sexual harassment a criminal offence, and proceedings are being initiated on the basis of complaints received from victims. Recalling its previous comments regarding the fact that provisions addressing sexual harassment are included in sections 24 and 25 of the Labour Code and section 105 of the Penal Code, the Committee reiterates its request to the Government to elaborate on the meaning of the term “sexual harassment” used in the Labour Code and the Penal Code, given that these laws do not define the term. Considering the considerable number of convictions under section 105 of the Penal Code, the Committee asks the Government to indicate how many of these cases related to sexual harassment at the workplace, and also to provide information on any measures taken to prevent sexual harassment through practical and promotional means.

Equality of opportunity and treatment in employment and occupation irrespective of race, colour and national extraction. The Committee requests the Government to provide information on the situation in employment and occupation of non-Muslim minorities, as well as Turkish citizens of Kurdish and Roma origin. Please indicate the measures taken to promote and ensure their equal participation in employment and occupation.

Article 5. Special measures of protection. The Committee notes that under section 79 of the Labour Code an employee shall not be permitted to work where his or her age, sex or health is incompatible with the employment in the establishment. The Committee requests the Government to provide detailed information on the cases in which the employee’s age, sex or health is considered incompatible with employment in a specific establishment.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government’s report, as well as the comments made by the Turkish Confederation of Employers’ Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ), which were attached to the report.

Articles 1 and 2 of the Convention. Discrimination based on political opinion. The Committee recalls its previous comments concerning the application of the Anti-Terrorism Act or the Penal Code in cases involving journalists, writers and publishers expressing their political opinions. Noting that the Government has provided no information, the Committee requests the Government once again to provide information on the number and outcomes of cases against journalists, writers and publishers, including a brief summary of the facts and specific charges brought. The Committee also requests the Government to provide information on any measures taken, including legislative measures, to ensure that no journalist, writer or publisher is restricted in the exercise of their employment or occupation because of political opinions expressed by them.

Article 2. Equality of opportunity and treatment for women and men. The Committee notes from ILO statistical data that the rate of economically active women (15 years of age and more) further declined to 24.5 per cent in 2008 (24.8 per cent in 2005). By comparison the activity rate for men was 70.1 per cent in 2008 (72.2 per cent in 2005). The Committee notes that between 2001 and 2008 there was a decline of economic activity of women younger than 20 years of age and of women older than 45 years of age. The decline of economic activity of younger women, which coincides with their increasing participation in education, has translated into some increases of economic activity of women between 20 and 45 years of age. The Committee notes that according to the Government’s report the enrolment rate of girls in secondary school was 55.8 per cent in 2007–08, compared to 61.1 per cent for boys for the same period.

The Committee welcomes progress towards equal opportunities of men and women in education, but notes with concern the continuing overall low level of participation of women in the labour market, and particularly the decline of the activity rate of women older than 45 years of age. In its previous observation, the Committee requested the Government to provide detailed information on the measures taken to promote equality of opportunity and treatment of men and women in employment and occupation. The Committee notes that the Government’s report refers to the equal treatment provisions of the Constitution, the Labour Code and the regulations governing active labour market programmes; that 13,123 unemployed women and 30,418 unemployed men have participated in training courses and integration programs organized by the Turkish National Employment Agency; the preparation of legislative amendments regarding paternity leave which the Committee already noted in 2007; and efforts to analyse the situation of women in the labour market in the context of the European Employment Strategy. The Committee notes that the Government has provided very little information on practical and promotional measures to promote women’s equality of opportunity and treatment in practice and that no information was provided on the follow-up to the Women’s Employment Summit held in Istanbul in 2006, or any related collaboration with workers’ and employers’ organizations. The TISK refers to 24 projects to assist unemployed women and youth to acquire vocational skills and experience submitted in April 2008 under a scheme financed by the European Union. The TISK also states that as a corollary to the National Employment Strategy the National Employment Policy for Women needs to be implemented. TÜRK-IŞ considers that the vocational training institutions at the provincial level did not function satisfactorily. Noting that overcoming the persisting inequality between men and women in the labour market will require proactive policies and measures, the Committee requests the Government to provide more detailed information on the practical measures or projects implemented to promote women’s equal opportunities and treatment in employment and occupation, including specific measures targeting women in rural areas and women over 45 years of age. The Committee requests the Government to provide information on any measures taken to follow up on the 2006 Women’s Employment Summit, including the steps taken to cooperate with the social partners. Further, the Committee reiterates its request to the Government to provide detailed statistical information on the situation of men and women in the labour market, including their participation in the various sectors and occupations.

In its previous comments, the Committee requested the Government to provide an assessment of the impact of the current prohibition for university students to wear head coverings on the participation in higher education of women wishing to wear headscarves out of religious obligation or conviction. In this regard, the Committee asked the Government to provide information on the number of female students expelled from universities for wearing headscarves on university premises. In reply to these comments, the Government indicates that it was not in a position to provide such information. The Committee recalls its previous comments in which it has point out that, while the existing prohibition of head coverings includes all forms of coverings and applies to men and women, this measure may have a discriminatory effect on women with regard to their access to university education. The Committee therefore reiterates its request to the Government to obtain and provide information on the number of female students expelled from universities for wearing headscarves on university premises, and to report on the measures taken to assess and review this matter.

Articles 1, 2 and 3. Legal protection from discrimination in respect of recruitment and selection. The Committee recalls that section 5(1) of the Labour Code prohibits any discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or similar reasons in the employment relationship. In its previous comments the Committee has concluded that this provision does not prohibit discrimination at the recruitment stage. However, the Committee has noted that section 122 of the Turkish Penal Code, which entered into force in 2005, provides that a person, practising discrimination on grounds of language, race, colour, sex, disability, political opinion, philosophical beliefs, religion, creed or other grounds, who makes the employment of a person contingent on one of these grounds or who prevents a person from carrying out an ordinary economic activity shall be sentenced to imprisonment for a term of six months to one year or a judicial fine. The Committee notes that as indicated by the Government there has been one case invoking section 122 of the Penal Code. Recalling that under the Convention, there is an obligation to address discrimination in respect of access to employment, including recruitment and selection, the Committee requests the Government to continue to provide information on the number, nature and outcome of criminal proceedings under section 122 of the Penal Code to allow the Committee to ascertain whether effective protection from discrimination at the recruitment stage is available under the existing legislation. The Committee also requests the Government to indicate whether persons considering themselves victims of discrimination in recruitment can bring complaints under section 122 of the Penal Code and whether they can obtain compensation or other remedies.

Enforcement of section 5 of the Labour Code. In its previous comments, the Committee noted that according to trade union comments it had received, discrimination continues to occur in practice, despite the equal treatment clause set out in section 5 of the Labour Code. In reply to the Committee’s request for information on the measures taken by the labour inspectorate to monitor compliance with these provisions, the Government generally states that compliance with section 5 is being considered in the context of inspections and that an individual application can trigger an inspection. However, the data provided do not indicate whether any of the inspections carried out or fines imposed involved issues under section 5 of the Labour Code. The Committee requests the Government to provide information on whether the labour inspectorate has dealt with any cases under section 5 of the Labour Code and it reiterates its request to the Government to indicate whether the courts have decided any such cases. Please indicate the number, nature and outcome of such cases.

Articles 1, 2 and 3(d). Application of the Convention in the civil service. The Committee recalls the concerns expressed by the Confederation of Public Employees Trade Unions (KESK) that the legislation covering public employees was lacking non-discrimination provisions, indicating that the general protection against discrimination based on sex available under article 10 of the Constitution was insufficient. The KESK referred to instances of discriminatory job announcements and unequal access of women to managerial positions in the civil service. In reply to the Committee’s previous comments regarding this matter, the Government states that civil servants are nominated according to the result of a centralized examination throughout the country. Interviews are only conducted for a limited number of positions, which, in the Government’s view, reduce the possibility of discrimination. Further, the Government asserts that there is no gender discrimination as regards appointment to higher level positions. While noting this information, the Committee trusts that the Government will take swift action to address any allegations of discrimination in the civil service. It also requests the Government to provide detailed statistical information on the participation of men and women in the examinations for different branches and positions in the civil service, the actual number of appointments made after interviews and the measures taken to promote equal opportunities for men and women, including measures to allow men and women to reconcile work and family responsibilities.

The Committee further recalls its previous comments in which it expressed concern that security investigations may lead to exclusions from civil service employment contrary to the requirements of the Convention, for instance due to having peacefully expressed political opinions. Noting that the Government failed to provide the information requested by the Committee in this regard, the Committee once again requests the Government to assess the extent to which security investigations have led to exclusions from public employment, and indicate the outcome of such assessment. In this context, the Committee requests the Government to indicate the number of administrative appeals filed by persons excluded from public employment on the basis of security investigations and the outcomes of these proceedings.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 and 2 of the Convention. Sexual harassment. The Committee notes that according to the Government’s report, 1,071 convictions were pronounced in 2007 regarding section 105 of the Penal Code which makes sexual harassment a criminal offence, and proceedings are being initiated on the basis of complaints received from victims. Recalling its previous comments regarding the fact that provisions addressing sexual harassment are included in sections 24 and 25 of the Labour Code and section 105 of the Penal Code, the Committee reiterates its request to the Government to elaborate on the meaning of the term “sexual harassment” used in the Labour Code and the Penal Code, given that these laws do not define the term. Considering the considerable number of convictions under section 105 of the Penal Code, the Committee asks the Government to indicate how many of these cases related to sexual harassment at the workplace, and also to provide information on any measures taken to prevent sexual harassment through practical and promotional means.

Equality of opportunity and treatment in employment and occupation irrespective of race, colour and national extraction. The Committee requests the Government to provide information on the situation in employment and occupation of non-Muslim minorities, as well as Turkish citizens of Kurdish and Roma origin. Please indicate the measures taken to promote and ensure their equal participation in employment and occupation.

Article 5. Special measures of protection. The Committee notes that under section 79 of the Labour Code an employee shall not be permitted to work where his or her age, sex or health is incompatible with the employment in the establishment. The Committee requests the Government to provide detailed information on the cases in which the employee’s age, sex or health is considered incompatible with employment in a specific establishment.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report, as well as the comments made by the Turkish Confederation of Employers’ Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ), which were attached to the report.

Articles 1 and 2 of the Convention. Discrimination based on political opinion. The Committee recalls its previous comments concerning the application of the Anti-Terrorism Act or the Penal Code in cases involving journalists, writers and publishers expressing their political opinions. Noting that the Government has provided no information, the Committee requests the Government once again to provide information on the number and outcomes of cases against journalists, writers and publishers, including a brief summary of the facts and specific charges brought. The Committee also requests the Government to provide information on any measures taken, including legislative measures, to ensure that no journalist, writer or publisher is restricted in the exercise of their employment or occupation because of political opinions expressed by them.

Article 2. Equality of opportunity and treatment of women and men. The Committee notes from ILO statistical data that the rate of economically active women (15 years of age and more) further declined to 24.5 per cent in 2008 (24.8 per cent in 2005). By comparison the activity rate for men was 70.1 per cent in 2008 (72.2 per cent in 2005). The Committee notes that between 2001 and 2008 there was a decline of economic activity of women younger than 20 years of age and of women older than 45 years of age. The decline of economic activity of younger women, which coincides with their increasing participation in education, has translated into some increases of economic activity of women between 20 and 45 years of age. The Committee notes that according to the Government’s report the enrolment rate of girls in secondary school was 55.8 per cent in 2007–08, compared to 61.1 per cent for boys for the same period.

The Committee welcomes progress towards equal opportunities of men and women in education, but notes with concern the continuing overall low level of participation of women in the labour market, and particularly the decline of the activity rate of women older than 45 years of age. In its previous observation, the Committee requested the Government to provide detailed information on the measures taken to promote equality of opportunity and treatment of men and women in employment and occupation. The Committee notes that the Government’s report refers to the equal treatment provisions of the Constitution, the Labour Code and the regulations governing active labour market programmes; that 13,123 unemployed women and 30,418 unemployed men have participated in training courses and integration programs organized by the Turkish National Employment Agency; the preparation of legislative amendments regarding paternity leave which the Committee already noted in 2007; and efforts to analyse the situation of women in the labour market in the context of the European Employment Strategy. The Committee notes that the Government has provided very little information on practical and promotional measures to promote women’s equality of opportunity and treatment in practice and that no information was provided on the follow-up to the Women’s Employment Summit held in Istanbul in 2006, or any related collaboration with workers’ and employers’ organizations. The TISK refers to 24 projects to assist unemployed women and youth to acquire vocational skills and experience submitted in April 2008 under a scheme financed by the European Union. The TISK also states that as a corollary to the National Employment Strategy the National Employment Policy for Women needs to be implemented. TÜRK-IŞ considers that the vocational training institutions at the provincial level did not function satisfactorily. Noting that overcoming the persisting inequality between men and women in the labour market will require proactive policies and measures, the Committee requests the Government to provide more detailed information on the practical measures or projects implemented to promote women’s equal opportunities and treatment in employment and occupation, including specific measures targeting women in rural areas and women over 45 years of age. The Committee requests the Government to provide information on any measures taken to follow up on the 2006 Women’s Employment Summit, including the steps taken to cooperate with the social partners. Further, the Committee reiterates its request to the Government to provide detailed statistical information on the situation of men and women in the labour market, including their participation in the various sectors and occupations.

In its previous comments, the Committee requested the Government to provide an assessment of the impact of the current prohibition for university students to wear head coverings on the participation in higher education of women wishing to wear headscarves out of religious obligation or conviction. In this regard, the Committee asked the Government to provide information on the number of female students expelled from universities for wearing headscarves on university premises. In reply to these comments, the Government indicates that it was not in a position to provide such information. The Committee recalls its previous comments in which it has point out that, while the existing prohibition of head coverings includes all forms of coverings and applies to men and women, this measure may have a discriminatory effect on women with regard to their access to university education. The Committee therefore reiterates its request to the Government to obtain and provide information on the number of female students expelled from universities for wearing headscarves on university premises, and to report on the measures taken to assess and review this matter.

Articles 1, 2 and 3. Legal protection from discrimination in respect of recruitment and selection. The Committee recalls that section 5(1) of the Labour Code prohibits any discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or similar reasons in the employment relationship. In its previous comments the Committee has concluded that this provision does not prohibit discrimination at the recruitment stage. However, the Committee has noted that section 122 of the Turkish Penal Code, which entered into force in 2005, provides that a person, practising discrimination on grounds of language, race, colour, sex, disability, political opinion, philosophical beliefs, religion, creed or other grounds, who makes the employment of a person contingent on one of these grounds or who prevents a person from carrying out an ordinary economic activity shall be sentenced to imprisonment for a term of six months to one year or a judicial fine. The Committee notes that as indicated by the Government there has been one case invoking section 122 of the Penal Code. Recalling that under the Convention, there is an obligation to address discrimination in respect of access to employment, including recruitment and selection, the Committee requests the Government to continue to provide information on the number, nature and outcome of criminal proceedings under section 122 of the Penal Code to allow the Committee to ascertain whether effective protection from discrimination at the recruitment stage is available under the existing legislation. The Committee also requests the Government to indicate whether persons considering themselves victims of discrimination in recruitment can bring complaints under section 122 of the Penal Code and whether they can obtain compensation or other remedies.

Enforcement of section 5 of the Labour Code. In its previous comments, the Committee noted that according to trade union comments it had received, discrimination continues to occur in practice, despite the equal treatment clause set out in section 5 of the Labour Code. In reply to the Committee’s request for information on the measures taken by the labour inspectorate to monitor compliance with these provisions, the Government generally states that compliance with section 5 is being considered in the context of inspections and that an individual application can trigger an inspection. However, the data provided do not indicate whether any of the inspections carried out or fines imposed involved issues under section 5 of the Labour Code. The Committee requests the Government to provide information on whether the labour inspectorate has dealt with any cases under section 5 of the Labour Code and it reiterates its request to the Government to indicate whether the courts have decided any such cases. Please indicate the number, nature and outcome of such cases.

Articles 1, 2 and 3(d). Application of the Convention in the civil service. The Committee recalls the concerns expressed by the Confederation of Public Employees Trade Unions (KESK) that the legislation covering public employees was lacking non-discrimination provisions, indicating that the general protection against discrimination based on sex available under article 10 of the Constitution was insufficient. The KESK referred to instances of discriminatory job announcements and unequal access of women to managerial positions in the civil service. In reply to the Committee’s previous comments regarding this matter, the Government states that civil servants are nominated according to the result of a centralized examination throughout the country. Interviews are only conducted for a limited number of positions, which, in the Government’s view, reduce the possibility of discrimination. Further, the Government asserts that there is no gender discrimination as regards appointment to higher level positions. While noting this information, the Committee trusts that the Government will take swift action to address any allegations of discrimination in the civil service. It also requests the Government to provide detailed statistical information on the participation of men and women in the examinations for different branches and positions in the civil service, the actual number of appointments made after interviews and the measures taken to promote equal opportunities for men and women, including measures to allow men and women to reconcile work and family responsibilities.

The Committee further recalls its previous comments in which it expressed concern that security investigations may lead to exclusions from civil service employment contrary to the requirements of the Convention, for instance due to having peacefully expressed political opinions. Noting that the Government failed to provide the information requested by the Committee in this regard, the Committee once again requests the Government to assess the extent to which security investigations have led to exclusions from public employment, and indicate the outcome of such assessment. In this context, the Committee requests the Government to indicate the number of administrative appeals filed by persons excluded from public employment on the basis of security investigations and the outcomes of these proceedings.

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

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Protection from discrimination in respect of access to employment and particular occupations, as well as vocational training. Noting the explanations provided by the Government in reply to point 1 of the Committee’s previous direct request, the Committee notes that article 5 of the Labour Code does not prohibit discrimination at the recruitment stage. However, the Committee notes that article 122 of the new Turkish Penal Code (Act No. 5237) which entered into force in 2005 provides that a person, practising discrimination on grounds of language, race, colour, sex, disability, political opinion, philosophical believes, religion, creed or other grounds, who makes the employment of a person contingent on one of these grounds or who prevents a person from carrying out an ordinary economic activity shall be sentenced to imprisonment for a term of six months to one year or a judicial fine. The Committee requests the Government to provide information as to whether any cases have been brought under article 122 of the Penal Code in order to enable the Committee to assess whether this provision can be seen as providing effective protection from discrimination in respect of access to employment and particular occupations within the meaning of the Convention. The Committee reiterates its request to the Government to indicate how equality of opportunity and treatment is ensured in respect of vocational training.

2. Categories of workers excluded from the scope of the Labour Act. The Committee notes the Government’s indication that the legislation governing the employment of workers excluded from the scope of the Labour Act (article 4) contained no discriminatory provisions and general protection from unequal treatment was available under the Law of Obligations. The Government also points out that article 122 of the Penal Code (see above) covered all categories of workers excluded from the Labour Act. The Committee further notes the concern expressed by the Confederation of Public Employees Trade Unions (KESK) that the legislation covering public employees was lacking non-discrimination provisions, indicating that the general protection against discrimination based on sex available under article 10 of the Constitution was insufficient. KESK refers to instances of discriminatory job announcements and unequal access of women to managerial positions in the civil service. The Committee stresses that the Convention applies to all categories of workers and that under the national policy to promote equality of opportunity and treatment in employment and occupation to be adopted and implemented in accordance with Article 2 of the Convention, measures should be taken to protect all workers from discrimination, in law and in practice. While noting the various administrative measures taken to promote non-discrimination in the civil service, the Committee recalls Turkey’s obligations under Article 3(d) of the Convention and requests the Government to consider introducing non-discrimination provisions into the laws and regulations governing the civil service, in cooperation with the social partners, and to indicate any measures taken or envisaged in this regard in its next report.

3. Sexual harassment. The Committee notes that the Government’s report, in addition to articles 24 and 25 of the Labour Act on which the Committee commented previously, refers to article 105 of the Penal Code which provides that upon a complaint filed by a victim, the perpetrator of sexual abuse shall be sentenced to imprisonment for a term of three months to two years or to a judicial fine. The Committee requests the Government to elaborate on what kind of behaviour would qualify as sexual abuse under article 105 and to explain the differences between sexual abuse and sexual harassment under articles 24 and 25 of the Labour Act, if any. Once again expressing its concerns over the fact that the Labour Act only deals with sexual harassment in the context of termination of employment, the Committee urges the Government to consider revising the legislation with a view to explicitly prohibiting and defining sexual harassment at work. Please provide any information on further developments in this regard, as well as on any other measures taken to prevent sexual harassment, including through awareness-raising and training activities.

4. Measures to promote equality of opportunity and treatment in employment and occupation of men and women. Further to its observation (points 1–4), the Committee asks the Government to provide the following information on:

(a)   the progress made closing the gender gap regarding education, including statistical information on the participation in education and training at all levels (including higher education), disaggregated by sex, as well as literacy levels;

(b)   the measures taken by the Turkish National Employment Agency to promote access of women to vocational training and employment, including information on the extent to which women have benefited from labour market policies and measures;

(c)   statistical information on the position of men and women in private and public employment, according to levels of education, status of employment, and occupational grouping; and

(d)   the steps taken by the general directorate on the status and problems of women to promote gender equality at work.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report, as well as the comments made by the Turkish Confederation of Employers’ Associations (TISK), the Confederation of Turkish Trade Unions (TÜRK-IŞ) and the Confederation of Public Employees Trade Unions (KESK), which were attached to the report.

1. Equality of opportunity and treatment for men and women. The Committee notes the information provided by the Government, as well as TISK, on the various programmes, initiatives and campaigns to promote greater access of women and girls to education and training. According to the statistical information provided in the report, 46.8 per cent of secondary school students are girls. Efforts were made to increase accommodation and transportation facilitates for girls and boys with a view to increasing access to education. Women continued to benefit from active labour market measures offered by the Turkish National Employment Agency. The Committee also notes that gender equality and the promotion of women’s employment has been the subject of projects carried out in cooperation with the European Union. A legislative initiative is ongoing to provide for unpaid parental leave.

2. While welcoming these efforts, the Committee also notes with great concern that the rate of participation of women in the labour force has continued to decrease. According to the Government’s data, women’s labour force participation rate further decreased from 25.4 per cent in 2004 to 24.8 in 2005. The labour force participation rate of women with a university education decreased considerably between 2004 and 2005 from 17 to 14.2 per cent. The Committee notes that the seriousness of women’s situation in the labour market and the fact that women remain concentrated in agriculture and the informal economy has been acknowledged by the Women’s Employment Summit which took place in Istanbul in February 2006. The Committee notes that the Final Declaration adopted by the Summit sets out important proposals to move forward, including through the development of a long-term National Women’s Employment Policy to be implemented through annual action plans, enhanced social dialogue and the promotion of equal opportunity practices. The Declaration also calls for further measures to reduce female illiteracy and to increase women’s access to vocational training and higher education. The Committee requests the Government to provide detailed information on the measures taken to promote equality of opportunity and treatment of men and women in employment and occupation, including information on any measures taken in cooperation with workers’ and employers’ organizations to follow-up on the proposals made by the 2006 Women’s Employment Summit.

3. The Committee notes the communication of KESK dated 31 May 2006, which was received together with the Government’s report, stating that discrimination based on sex occurred in practice despite the existing legal provisions. Recalling its previous comments concerning the practical application and enforcement of the Labour Act’s equal treatment provisions, the Committee reiterates its request to the Government to provide detailed information on the measures taken by the Labour Inspectorate to monitor compliance with the Labour Act’s equal treatment provisions, as well as information on any relevant judicial or administrative decisions, including whether any sanctions have been imposed for non-compliance, as provided under section 5 of the Labour Act.

4. With regard to the Committee’s previous comments concerning the current restrictions on the wearing of head coverings by students in higher educational institutions, the Committee notes that the Government’s report provides no information in reply to the Committee’s specific requests. The Committee recalls its previous comments on this matter and reiterates its request to the Government to provide an assessment of the impact of the current prohibition for university students to wear head coverings on the participation in higher education of women wishing to wear a headscarf out of religious obligation or conviction. Please also provide information on the number of female students expelled from universities for wearing headscarves on university premises. The Committee urges the Government to take the necessary measures to provide this information in its next report.

5. Discrimination based on political opinion. In its previous observation the Committee trusted that the Government would ensure that journalists, writers and publishers are not restricted in the exercise of their employment or occupation because of political opinions expressed by them and requested the Government to provide information concerning cases involving convictions of persons exercising these professions under the Anti-Terrorism Act or the Penal Code. The Committee notes from the Government’s report that as of 20 June 2006 there were 1,068 cases against journalists, writers and publishers pending under the Anti-Terrorism Act or the Penal Code. Between 1 January 2006 and 20 June 2006, a total of 74 such cases had been adjudicated, two of which led to convictions imposing prison sentences (one of them suspended) and 37 convictions imposing fines. The Committee requests the Government to continue to provide detailed information on the number and outcomes of cases against journalists, writers and publishers, including a brief summary of the facts and specific charges brought. The Committee urges the Government to take measures, including legislative measures, to ensure that no journalist, writer or publisher is restricted in the exercise of their employment or occupation because of political opinions expressed by them.

6. The Committee further notes that according to KESK the practice of refusing to reinstate public employees prosecuted under articles 301 and 216 of the Penal Code and those disciplined for holding left-wing views continues unabated, despite court decisions to the contrary. Reference is made to two specific cases in which the Ministry of National Education had refused to reinstate employees despite the fact that court decisions against them had been annulled. KESK also states that employees sharing the religious views of the Government had been promoted at the expense of other employees. The Committee requests the Government to provide a reply with regard to the matters raised by KESK.

7. Article 3(d) of the Convention. Security investigations. The Committee noted previously that security investigations are required for persons to be employed in a very broad range of public institutions dealing with matters unrelated to state security, and which did not appear to be limited to checking criminal convictions but also whether the person had contact with the police or intelligence units. In this context, the Committee expressed concern that such security investigations may lead to exclusions from employment contrary to the requirements of the Convention, for instance due to having peacefully expressed political opinions. The Committee requested the Government to assess the extent to which security investigations had led to exclusions from the public service and the reasons thereof. In its report, the Government states that security investigations in public institutions are limited to those employees working in units holding classified information and that the assessments reached on the basis of security investigations can be challenged before the administrative courts. While noting this information, the Committee nevertheless reiterates its request to the Government to assess the extent to which security investigations have led to exclusions from public employment, and indicate the outcome of such assessment. In this context the Committee requests the Government to indicate the number of administrative appeals filed by persons excluded from public employment on the basis of security investigations and the outcomes of these proceedings.

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

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Article 1 of the Convention. Prohibition of discrimination. Further to its observation, the Committee asks the Government to provide information on the following points in relation to the Labour Act (No. 4857):

(a)  Noting that section 2 of the Act defines "employment relationship" as the "relationship established between the employee and the employer", the Committee requests the Government to clarify whether section 5 of the Labour Act prohibits discrimination in respect of recruitment, as well as in terms and conditions and termination of employment, on all the prohibited grounds covered by section 5(1).

(b)  Please indicate how equality of opportunity and treatment is ensured in respect to access to vocational training and particular occupations, including self-employment, as well as in those categories of work excluded from the scope of the Labour Act.

2. Discrimination on the basis of sex. Sexual harassment. The Committee notes that under section 24 of the Labour Act the worker has the right to terminate a labour contract before the expiry of its term or the notification period if the employer attempts sexual harassment against a worker or if the required measures are not taken in cases where a worker is subjected to sexual harassment at work by another worker or third person and has notified the employer thereof. The Committee draws to the Government’s attention that, under the Convention, sexual harassment is a form of prohibited discrimination on the ground of sex. The Committee hopes that section 5 of the Act, which generally prohibits any discrimination on the ground of sex, also covers sexual harassment. Further, the Committee considers it problematic that sexual harassment is explicitly dealt with only in the context of termination of employment. The Committee encourages the Government to revise the legislation with a view to explicitly prohibiting and defining sexual harassment and providing for adequate legal protection for victims of such practices. The Government is also invited to supply information in reply to the Committee’s 2002 general observation on this issue.

3. Discrimination on the basis of political opinion. The Committee recalls its previous comments concerning the need to repeal or amend section 3(d) of Martial Law Act No. 1402. The Committee recalls that the provision in question vests martial law commanders with broad discretionary powers to transfer workers and public employees to other areas. In the view of the Committee, this could lead to discrimination in employment on the basis of political opinion in contravention of the Convention. The Committee notes that the Government has supplied a number of decisions taken regarding appeals lodged concerning the application of section 3(d) of Act No. 1402.  The Committee hopes that the Government will take the necessary measures to review, in the context of the ongoing reforms and in consultation with the social partners, whether appropriate changes to section 3(d) of Act No. 1402 could be introduced to ensure that measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination. Please keep the Committee informed in this respect.

4. Article 2. Measures to promote equality of opportunity and treatment in employment and occupation of men and women. Further to its observation (point 6), the Committee asks the Government to provide the following information on:

(a)  the progress made closing the gender gap regarding education, including statistical information on the participation in education and training at all levels, disaggregated by sex, as well as literacy levels;

(b)  the measures taken by the Turkish National Employment Agency to promote access of women to vocational training and employment, including information on the extent to which women have benefited from labour market policies and measures;

(c)  statistical information on the position of men and women in the labour market, according to levels of education, status or employment, economic, sector and occupational grouping; and

(d)  the implementation of the circular issued in January 2004 by the Office of the Prime Minister concerning civil service recruitment on the basis of gender equality, and the steps taken by the general directorate on the status and problems of women to promote gender equality at work.

5. Article 5. Termination of employment following maternity leave period. The Committee notes that under section 25(1) of the Labour Act the employer can terminate the employment contract of a female employee without notice if recovery from pregnancy and confinement continues for more than six weeks beyond the maternity leave period. Noting the Government’s statement that this provision is in the process of being amended, the Committee asks the Government to keep it informed on any developments in this regard.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee notes the Government’s report and the comments made by the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Turkish Trade Unions (TÜRK-IS), the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN), as well as the Turkish Confederation of Employers Association (TISK). The Committee also recalls the communication from the International Confederation of Free Trade Unions (ICFTU) dated 15 December 2003, which relates to gender equality in employment and occupation.

2. Article 1 of the Convention. Prohibition of discrimination. The Committee notes that section 5(1) of the Labour Act of 22 May 2003 (No. 4857) prohibits any discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or similar reasons in the employment relationship, while no specific reference is made in this provision to the grounds of social origin, colour and national extraction which are listed in Article 1(1)(a) of the Convention. Section 5(3) provides that the employer shall not discriminate against an employee, either directly or indirectly, in respect of the conclusion, conditions, execution and termination of the employment contract due to the employee’s sex or pregnancy. The Committee also notes that a violation of section 5 constitutes an administrative offence and that victims of discrimination may claim compensation under section 5(6) of the Act. The Committee welcomes these provisions and asks the Government to provide information on the application in practice of the Labour Act’s equal treatment provisions, including information on the measures taken by the labour inspectorate, relevant judicial and administrative decisions and any sanctions imposed for non-compliance. In order to allow the Committee to appreciate fully the equal treatment provisions of the Labour Act in the light of the Convention’s requirements, further information on a number of points is requested from the Government in a direct request.

3. Discrimination on the grounds of political opinion. The Committee recalls its previous observations concerning the need to ensure that journalists, writers or publishers are not deprived of their employment or occupation for peacefully expressing their political opinion. In this regard, it notes from the Government’s report, as well as from information provided by the Government to the Committee of Ministers of the Council of Europe (Appendix 2 to Interim Resolution ResDH(2004)38, adopted by the Council of Ministers on 2 June 2004) that a number of legislative amendments have been made in order to bring Turkish law into conformity with the requirements of Article 10 (freedom of expression) of the European Convention on Human Rights, in particular the repeal of section 8 of the Anti-Terrorism Act, and the modifications of section 7 of the same Act, and of sections 159 and 312 of the Criminal Code. The Committee trusts that the Government will continue to take measures to ensure that journalists, writers and publishers are not restricted in the exercise of their employment or occupation because of political opinions expressed by them, and it requests the Government to keep the Committee informed on any further legislative or other measures taken to this end. The Government is also requested to provide information on the number, nature and outcome of cases involving convictions of journalists, writers and publishers under the Anti-Terrorism Act or the Penal Code, including indications as to whether any prison sentences have been pronounced in such cases.

4. Discrimination on the grounds of religion and sex. Recalling its previous comments concerning the existing restrictions on university students wearing Islamic headscarves, the Committee notes the statements by the Government, DISK, TÜRK-IS, and TISK to the effect that these restrictions were in accordance with the national Constitution and with the European Convention on Human Rights, and were necessary because the headscarf issue has been used by some political parties to advocate constitutional change that ultimately would abolish established human rights guarantees. The Committee notes the judgement of the European Court of Human Rights in the case of Leyla Şahin v. Turkey of 29 June 2004, which the Government has supplied with its report. In this case, the Court ruled that regulations imposing restrictions on wearing of Islamic headscarves in universities constituted an interference with the applicant’s right to manifest her religion. However, no violation of the European Convention had occurred, because, in the prevailing Turkish context, the restrictions were necessary in a democratic society to protect the rights and freedoms of others. The Committee notes that the Grand Chamber of the European Court of Human Rights issued a judgement on 10 November 2005 confirming the decision of 29 June 2004.

5. The Committee recalls that, in principle, where restrictions or exclusions based on a religious practice are made, which have the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation, discrimination, as defined in the Convention, may have occurred. It maintains that restrictions on the wearing of head coverings may have the effect of nullifying or impairing the access to university education of women who feel obliged to or wish to wear, a headscarf out of religious obligation or conviction. The Committee trusts that the Government will keep the evolving situation under continuous review in order to determine whether such a general restriction is still necessary, and to ensure that the right of equal access to education and training at the university level of women who feel obliged to or wish to wear a headscarf out of religious conviction is not restricted, contrary to the Convention. The Committee remains concerned that the current restrictions may, in practice, keep women away from university education and training. In order to allow the Committee to obtain a better understanding of the situation, the Government is requested to provide in its next report its assessment of the impact of the current prohibition for university students to wear dress manifesting a religion on the participation of women in higher education, including an indication of the number of female students expelled from universities for wearing headscarves on university premises.

6. Article 2. Equality of opportunity and treatment of men and women. The Committee notes with interest that article 10 of the Constitution has been amended and now provides that the State shall guarantee effective equality of men and women. The Committee also notes that important progress has been made in establishing equal rights of men and women with the adoption of the new Civil Code which entered into force on 1 January 2002, which it believes can make a positive contribution to moving towards gender equality in employment and occupation. At the same time, the Committee is concerned to note statistical information indicating that the position of women in the labour market remains very weak. According to statistical data compiled by the ILO on the economically active population, the activity rate for women decreased from 26.9 per cent in 2002 to 25.4 per cent in 2004. The male activity rate increased from 70.5 per cent to 73.3 per cent during the same period. The Committee also notes from the data supplied by the Government that women with university educations are under-represented in executive and managerial jobs, compared to men at the same level of education. Some 58 per cent of economically active women worked in the agricultural sector in 2003, four out of five as unpaid family workers. The Committee also notes that while some progress has been made towards the equal participation of girls and boys in education, girls continue to be particularly affected by illiteracy and lag behind in almost all levels of education and particularly in higher education. The Committee encourages the Government to continue to take measures to promote equality of opportunity and treatment of men and women in education and employment and to continue to provide information on the progress made. The Government is also asked to provide information on the concrete steps taken to ensure effective gender equality in employment, in implementation of article 10 of the Constitution.

7. Equality of opportunity and treatment irrespective of race, colour, national extraction and social origin. In its previous observation, the Committee requested the Government to provide information on the measures taken or envisaged to promote equality of opportunity and treatment in employment and occupation of all parts of the population irrespective of race, colour, national extraction or social origin. The Committee notes that section 5 of the new Labour Act prohibits discrimination on the bases of language and race. The Committee recommends to the Government that it include the grounds of colour, national extraction, and social origin in section 5 of the Labour Act. Further, the Government is requested to provide information on the measures taken or envisaged to ensure and promote equal access to employment and occupation in practice, irrespective of ethnic or social background.

8. Article 3(d). Security investigations. The Committee recalls that personnel to be employed in public bodies and institutions holding classified information and documents are subject to security investigations under the Regulations on Security Investigations and Investigation of Records of 14 February 2004. The Committee notes from the Government’s report that security investigations are required for persons to be employed in a very broad range of public institutions dealing with matters unrelated to state security, such as research, education, labour and social affairs, media, culture, history, meteorology, statistics and trade. The Committee also recalls that security investigations do not only involve a checking of criminal convictions but also of any contact with the police and intelligence units. The Committee remains concerned that this kind of security investigation may lead to exclusions from employment contrary to the requirements of the Convention, for instance due to having peacefully expressed political opinions. The Committee once again emphasizes the need to ensure that the measures taken by the authorities authorized to request and conduct security investigations are in practice in line with the requirements of the Convention. It asks the Government to assess the extent to which security investigations have led to exclusions from public employment and the reasons thereof. Finally, the Committee encourages the Government to review, in the context of the ongoing reforms in Turkey, whether the scope of security investigations could be further limited, and invites the Government to provide information on any measures taken in this regard.

The Committee is raising other and related points in a request addressed directly to the Government.

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

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. Discrimination on the basis of sex. The Committee notes from the Government’s report that continuing efforts are being made to provide better employment opportunities for women through the various training courses organized by the National Employment Agency, including in professions traditionally dominated by men, such as, inter alia, computer programmer, accountant, electronic computer operator or sales assistant. The Committee notes that in 2000 the percentage of women participating in employment-guaranteed training courses slightly decreased to 68 per cent from 73.7 per cent in 1999 and the percentage of female participants in business start-up training courses increased from 86.7 to 89 per cent. The Government is invited to continue to provide information on the vocational training provided by the National Employment Service, including information on the number of women participating in the different courses, including those concerning occupations traditionally taken up by men.

2. The Committee notes from the comments by the Turkish Confederation of Employers’ Associations (TISK) that the functions of the Turkish Labour Institute (IŞKUR) have been extended to implement active and passive labour force policies and that in its restructured form IŞKUR will be able to take measures to strengthen the position of women in the labour market. Please provide information on the activities of IŞKUR aiming at the promotion of gender equality in employment and occupation.

3. The Committee understands that the Grand National Assembly has adopted amendments to the Constitution and Civil Code in respect to equality between the two sexes. Please provide further details on these legislative changes and on their application in practice in the field of employment. Noting the Government’s statement that it spares no effort to pursue the review of the Labour Code within the framework of tripartite consultations, the Committee asks the Government to provide information on the status of the review in respect to section 17(1)(a) which entitles an employer to terminate a female worker’s contract without notice at the end of the paid maternity leave period, and to provide copies of any amendment adopted.

4. In respect of the Committee’s previous comments on the issue of appointment of women to higher administrative jobs and the Committee’s request for statistical data on the distribution of men and women in the different posts and at the different levels of administration, the Committee notes that the Government is unable to provide such data. It notes that the statistical information disaggregated by sex and level of employment is an important tool in order to assess the situations of vertical occupational segregation, to design and implement appropriate measures to promote women’s access to high-level jobs, and to evaluate their impact. The Committee therefore asks the Government to indicate whether it intends to collect such statistical data in the future and to provide any other information on measures taken or envisaged to enhance women’s access to higher level jobs in public administration, including positive action.

5. The 1979 discipline rules pertaining to the police force. The Committee notes that from the Government’s report that additional section 11 of the Security Organization Act No. 3201 of 1937, which constitutes the basis for subsection 33 of section 8 of the 1979 discipline rules, was amended on 21 April 2001. When the amendment has been reflected in subsection 33, members of the police force will be allowed to be founding members of foundations under the Civil Code and take part in their administrative bodies. The Government is requested to provide the text of any amendments to the discipline rules, once adopted. Noting that the Government has submitted copies of decisions of the administrative courts and the Council of State interpreting subsections 31-33 of section 8 of the discipline rules, the Committee will return to this matter when translations of the decisions become available.

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

The Committee notes the communication from the International Confederation of Free Trade Unions (ICFTU) dated 15 December 2003, which relates to issues previously raised by the Committee under this Convention. The Committee will further consider the communication together with the Government’s next report and any observation the Government may wish to make in reply.

Further, the Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government’s report, as well as the comments of the Turkish Confederation of Employers’ Associations (TISK) and the Confederation of Progressive Trade Unions of Turkey (DISK).

1. TISK states that female employment has increased in the private sector in recent years, while DISK indicates that the problems related to discrimination against women, as previously raised by the Committee, still exist. The Committee notes the statistical information for the year 2000 provided by the Government according to which the level of female literacy and labour force participation remains very low. Noting that the number of illiterate women is still around four times higher than that of men, the Committee observes that illiteracy is not only a problem in rural areas, with 2.4 million illiterate persons out of 6 million living in the cities. The overall labour force participation rate of men is at 73.1 per cent, while that of women is as low as 25.5 per cent. In 2000, female unemployment in urban areas was at 13.1 per cent as compared to 7.9 per cent for male unemployment. The Committee requests the Government to continue to provide statistical data on the situation of women in education and employment and information on measures taken to ensure equality of opportunity and treatment of women in employment and occupation.

2. Discrimination on the basis of sex and religion. The Committee recalls the communication dated 9 May 1999 of the Workers’ House of the Islamic Republic of Iran, a workers’ organization, which stated that a female legislator wearing an Islamic headscarf was treated in a discriminatory manner when she was forced from the hall of the Grand National Assembly without being sworn in. The comments received from the Workers’ House also alleged discrimination in regard to the ban on wearing of headscarves at universities, academic centres and by public servants. The Committee observed that the requirement that public servants and university students uncover their heads would in fact disproportionately affect women wearing headscarves, possibly impairing or precluding altogether their right to equal access to education and employment due to their religious practices. It moreover drew attention to the particular significance the ban on headscarf takes on when viewed in the light of the low level of education of women and their low level of participation in the workforce.

3. In this context, the Committee notes section 56 of the Standing Orders of the Grand National Assembly which states that "in the House, the members of Parliament, the members of the Turkish Senate, the ministers, the officials of the Grand National Assembly Organization and other public officials shall be required to wear jackets and ties. Ladies shall wear suits". The Committee notes that this dress code does not preclude the wearing of headscarves by female legislators and it hopes the Government will take the necessary measures to ensure equal access of women to take up their posts in the Grand National Assembly, irrespective of their sex and religious practice which are unrelated to the inherent requirements of the job.

4. As concerns the ban on wearing headscarves of civil servants in public buildings, the Committee notes that section 5(a) of the Regulations on Dress Code for the Personnel of Public Institutions and Establishments of 16 July 1982 provides that women’s heads shall always be uncovered. The regulation applies broadly to all civil servants, personnel under contract and temporary employees and blue-collar workers employed in institutions covered by the general and additional budgets, local administrations, institutions with floating capital and public economic enterprises, as well as bodies and establishments attached to them (section 2). As regards the prohibition of wearing headscarves in universities, the Committee notes the judgement of the Constitutional Court of 7 March 1989 concerning Act No. 3511 of 10 December 1988 amending the Act on universities. In its judgement, the Court declared unconstitutional certain provisions of Act No. 3511 which, as an exception to the general prohibition of covering heads on the premises of universities, allowed the wearing of headscarves for religious reasons. The Court’s reasoning is mainly based on the supremacy of the principle of secularism in the Turkish constitutional order, whereas the provisions in question were also found to be in violation of the principle of equality and the right to freedom of conscience and belief. According to the Court, the laws of a secular State had to be free of any religious content in order to protect democracy and fundamental rights. Wearing headscarves in universities would exert pressure on women not covering their heads and was unduly favouring one particular group. According to the Constitutional Court, it was not possible to allow the wearing of Islamic headscarves at the present time in order to secure equality and freedom of conscience and thought for all.

5. In respect of the above, while noting the complexity of the situation, the Committee reiterates its concern that the current broad prohibition for students and civil servants from wearing head coverings may lead to situations incompatible with the principle of equality as envisaged by the Convention. As stated previously, such a requirement would in fact disproportionately affect Muslim women, possibly impairing or precluding altogether their right to equal access to education and employment, due to their religious practices. The Committee deems it necessary to recall that the Government has undertaken to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality and treatment in respect to employment and occupation, with a view to eliminating any discrimination, including on the basis of sex and religion. The Committee also recalls that, in order to be permissible under the Convention, any distinction or exclusion that has the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation must be based on the inherent requirements of a particular job. The Government is therefore requested to consider ways and means to promote and ensure equal access of Muslim women to employment in the civil service irrespective of their religious practice, and to keep the Committee informed of any development concerning this matter. Recalling that the access of women to education is one of the factors determining their participation in the labour force and that the general level of education of women and their labour force participation in Turkey remains very low, the Committee also requests the Government to provide information on measures taken or envisaged to ensure that all women, including Muslim women and girls, enjoy their equal rights to education, including at the university level. The Committee once again requests the Government to provide statistical information on the numbers of women who have been precluded from attending university or from obtaining or maintaining jobs in the public service, due to the ban on headscarves.

6. Position of public servants dismissed or transferred during the period of martial law. The Committee refers to its previous comments concerning the reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402. The Committee had requested information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their jobs. Subsequently, the Government stated that those who were not reinstated in their jobs either did not apply or no longer met the requirements of the job due to prison sentences handed down under the Penal Code. Recalling its request to the Government to supply detailed information on the percentage of the 955 transferred employees that were not reinstated due to the imposition of prison sentences, indicating for each employee the nature of the criminal charges brought and the penalties imposed, the Committee notes the Government’s statement to the effect that the information requested was not available in the records of the relevant ministries and establishments. The Committee reiterates its request and hopes that the Government will make every effort to obtain the necessary information and to provide it to the Committee with its next report.

7. Amendments to Martial Law Act No. 1402. The Committee notes that the Government’s report contains no new information concerning the need to repeal or amend section 3(d) of Martial Law Act No. 1402. The Committee recalls that section 3(d) of that Act vests martial law commanders with broad discretionary powers to transfer workers and public employees to other areas. In the view of the Committee, this could lead to discrimination in employment on the basis of political opinion in contravention of the Convention. The Committee has previously expressed its hope that appropriate changes would be made so as to ensure that measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination. Recalling the Government’s assurances that the right to appeal concerning section 3(d) of Act No. 1402 exists pursuant to article 125 of the Constitution and to Act No. 2577 concerning the procedures of administrative trials, the Committee once again requests the Government to provide statistical information on the number of appeals that have been lodged over the application of section 3(d) of Act No. 1402 and their outcomes.

8. Security investigations. The Committee recalls its previous comments on resolution No. 90/245 of 8 March 1990 of the Council of Ministers and section 1 of Act No. 4045 of 26 October 1990 concerning security investigations. It was concerned that the broad scope of the provisions contained therein may lead to discrimination in employment and occupation on the basis, inter alia, of political opinion. In this context, the Committee notes the adoption of the Regulations on Security Investigations and Investigation of Records of 14 February 2000, which replace the regulations on the same subject as contained in resolution No. 90/245 of 8 March 1990. The Committee notes that security investigations and investigations of records are limited to personnel to be employed in units and departments of ministries and public institutions and bodies holding classified information or documents, as well as personnel to be employed in the Turkish armed forces, in the security and intelligence organizations, and in prison and detention centres. The Government is requested to provide indications as to which units, departments and functions in ministries and other public institutions have been determined, under section 6 of the Regulations, as units and departments holding classified information. The Committee also asks the Government to explain the meaning and content of the clause "any connection with the police forces and intelligence units" which is a common element of the terms "security investigations" and "investigation of records" as contained in section 4(f) and (g). The Committee notes that a "security investigation" includes, inter alia, an assessment whether the person has engaged in "destructive or separatist activities" or has acted in contravention of Act. No. 5816 on offences committed against Atatürk or of the principles and reforms of Atatürk (sections 4(g) and 11(c)). It notes with interest that the meaning of "destructive and separatist activities" has been limited to "activities aiming to violate the indivisible integrity of the State with its territory and nation and to endanger the existence of the State and the republic or to destroy fundamental rights and freedoms" (section 4(k)). It requests the Government to provide information on how this provision is applied in practice, including indications as to the number and nature of cases involving an exclusion from employment or transferral resulting from the application of section 11(c) in connection with section 4(g) and (k). The Committee also wishes to receive a copy of the duty instructions, under section 12(e) of the Regulations, of the authorities authorized to investigate. Overall, the Committee observes that progress has been made in enhancing the precision of certain terms contained in the previous legislation and in limiting the scope of security investigations. However, the Committee emphasizes the continuing need to ensure that the measures taken by the authorities authorized to request and conduct security investigations are in practice in line with the requirements of the Convention.

9. The 1991 Anti-Terrorism Act. The Committee recalls its previous comments on the broad definitions of terrorism in section 1 of this Act and the offence of propaganda contained in section 8. It expressed concern that the definitions used would not appear to lay down sufficient criteria upon which protection against imprisonment, based on political opinion or some other ground mentioned in the Convention, would be ensured. The Committee previously noted the introduction of the element of intent in section 8, thus restricting broad interpretations and the possibility of discrimination and the Government’s statement that section 1 limits the definition of terrorism to violent acts. However, the Committee noted the fact that journalists have been convicted under the Anti-Terrorism Act for expressing their opinions. As the Committee understands that relevant legislative changes have occurred, it requests the Government to provide detailed information on any changes concerning the Anti-Terrorism Act or other legislation that would further restrict the possibility of journalists, writers and publishers being deprived of their employment or occupation for expressing their political opinion. The Committee once again asks the Government, in order to avoid any ambiguity, to consider revising section 1 of the Act to ensure that no provision of the Act would lead to a conviction for expressing political opinions by non-violent means. The Committee also requests the Government to continue to provide information on the number, nature and outcomes of cases under the Act involving convictions pronounced against journalists, writers and publishers.

10. Non-discrimination on other grounds. The Government reiterates that equality of all Turkish citizens before the law is guaranteed under Turkish legislation and that they face no discrimination whatsoever as far as their statutory rights are concerned. The Government also states that present-day Turkey contains a multitude of ethnic, religious and cultural elements and that different ethnic identities, including the Kurdish, are acknowledged and accepted. The Committee recalls that while legislative provisions on equality and non-discrimination are an important element of a national equality policy in accordance with Article 2 of the Convention, they cannot constitute by themselves such a policy. The Convention provides for the elimination of discrimination in law and practice and, to this end, requires proactive measures towards achieving equality of opportunity and treatment of all workers. In this connection, the Committee notes the information provided by the Government on the projects to promote educational opportunities and employment carried out by the South-eastern Anatolia Project Regional Development Administration, including for nomadic/semi-nomadic communities. Noting from information available to it that recent reforms have introduced the possibility of private schools teaching in languages other than Turkish, the Committee asks the Government to provide information on this reform and on any other measures adopted or envisaged to promote equality in employment and occupation, irrespective of race, colour, national extraction and social origin.

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

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

1. Discrimination on the basis of sex. The Committee notes from the Government’s report that continuing efforts are being made to provide better employment opportunities for women through the various training courses organized by the National Employment Agency, including in professions traditionally dominated by men, such as, inter alia, computer programmer, accountant, electronic computer operator or sales assistant. The Committee notes that in 2000 the percentage of women participating in employment-guaranteed training courses slightly decreased to 68 per cent from 73.7 per cent in 1999 and the percentage of female participants in business start-up training courses increased from 86.7 to 89 per cent. The Government is invited to continue to provide information on the vocational training provided by the National Employment Service, including information on the number of women participating in the different courses, including those concerning occupations traditionally taken up by men.

2. The Committee notes from the comments by the Turkish Confederation of Employers’ Associations (TISK) that the functions of the Turkish Labour Institute (IŞKUR) have been extended to implement active and passive labour force policies and that in its restructured form IŞKUR will be able to take measures to strengthen the position of women in the labour market. Please provide information on the activities of IŞKUR aiming at the promotion of gender equality in employment and occupation.

3. The Committee understands that the Grand National Assembly has adopted amendments to the Constitution and Civil Code in respect to equality between the two sexes. Please provide further details on these legislative changes and on their application in practice in the field of employment. Noting the Government’s statement that it spares no effort to pursue the review of the Labour Code within the framework of tripartite consultations, the Committee asks the Government to provide information on the status of the review in respect to section 17(1)(a) which entitles an employer to terminate a female worker’s contract without notice at the end of the paid maternity leave period, and to provide copies of any amendment adopted.

4. In respect of the Committee’s previous comments on the issue of appointment of women to higher administrative jobs and the Committee’s request for statistical data on the distribution of men and women in the different posts and at the different levels of administration, the Committee notes that the Government is unable to provide such data. It notes that the statistical information disaggregated by sex and level of employment is an important tool in order to assess the situations of vertical occupational segregation, to design and implement appropriate measures to promote women’s access to high-level jobs, and to evaluate their impact. The Committee therefore asks the Government to indicate whether it intends to collect such statistical data in the future and to provide any other information on measures taken or envisaged to enhance women’s access to higher level jobs in public administration, including positive action.

5. The 1979 discipline rules pertaining to the police force. The Committee notes that from the Government’s report that additional section 11 of the Security Organization Act No. 3201 of 1937, which constitutes the basis for subsection 33 of section 8 of the 1979 discipline rules, was amended on 21 April 2001. When the amendment has been reflected in subsection 33, members of the police force will be allowed to be founding members of foundations under the Civil Code and take part in their administrative bodies. The Government is requested to provide the text of any amendments to the discipline rules, once adopted. Noting that the Government has submitted copies of decisions of the administrative courts and the Council of State interpreting subsections 31-33 of section 8 of the discipline rules, the Committee will return to this matter when translations of the decisions become available.

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

The Committee notes the Government’s report, as well as the comments of the Turkish Confederation of Employers’ Associations (TISK) and the Confederation of Progressive Trade Unions of Turkey (DISK).

1. TISK states that female employment has increased in the private sector in recent years, while DISK indicates that the problems related to discrimination against women, as previously raised by the Committee, still exist. The Committee notes the statistical information for the year 2000 provided by the Government according to which the level of female literacy and labour force participation remains very low. Noting that the number of illiterate women is still around four times higher than that of men, the Committee observes that illiteracy is not only a problem in rural areas, with 2.4 million illiterate persons out of 6 million living in the cities. The overall labour force participation rate of men is at 73.1 per cent, while that of women is as low as 25.5 per cent. In 2000, female unemployment in urban areas was at 13.1 per cent as compared to 7.9 per cent for male unemployment. The Committee requests the Government to continue to provide statistical data on the situation of women in education and employment and information on measures taken to ensure equality of opportunity and treatment of women in employment and occupation.

2. Discrimination on the basis of sex and religion. The Committee recalls the communication dated 9 May 1999 of the Workers’ House of the Islamic Republic of Iran, a workers’ organization, which stated that a female legislator wearing an Islamic headscarf was treated in a discriminatory manner when she was forced from the hall of the Grand National Assembly without being sworn in. The comments received from the Workers’ House also alleged discrimination in regard to the ban on wearing of headscarves at universities, academic centres and by public servants. The Committee observed that the requirement that public servants and university students uncover their heads would in fact disproportionately affect women wearing headscarves, possibly impairing or precluding altogether their right to equal access to education and employment due to their religious practices. It moreover drew attention to the particular significance the ban on headscarf takes on when viewed in the light of the low level of education of women and their low level of participation in the work force.

3. In this context, the Committee notes section 56 of the Standing Orders of the Grand National Assembly which states that "in the House, the members of Parliament, the members of the Turkish Senate, the ministers, the officials of the Grand National Assembly Organization and other public officials shall be required to wear jackets and ties. Ladies shall wear suits". The Committee notes that this dress code does not preclude the wearing of headscarves by female legislators and it hopes the Government will take the necessary measures to ensure equal access of women to take up their posts in the Grand National Assembly, irrespective of their sex and religious practice which are unrelated to the inherent requirements of the job.

4. As concerns the ban on wearing headscarves of civil servants in public buildings, the Committee notes that section 5(a) of the Regulations on Dress Code for the Personnel of Public Institutions and Establishments of 16 July 1982 provides that women’s heads shall always be uncovered. The regulation applies broadly to all civil servants, personnel under contract and temporary employees and blue-collar workers employed in institutions covered by the general and additional budgets, local administrations, institutions with floating capital and public economic enterprises, as well as bodies and establishments attached to them (section 2). As regards the prohibition of wearing headscarves in universities, the Committee notes the judgement of the Constitutional Court of 7 March 1989 concerning Act No. 3511 of 10 December 1988 amending the Act on universities. In its judgement, the Court declared unconstitutional certain provisions of Act No. 3511 which, as an exception to the general prohibition of covering heads on the premises of universities, allowed the wearing of headscarves for religious reasons. The Court’s reasoning is mainly based on the supremacy of the principle of secularism in the Turkish constitutional order, whereas the provisions in question were also found to be in violation of the principle of equality and the right to freedom of conscience and belief. According to the Court, the laws of a secular State had to be free of any religious content in order to protect democracy and fundamental rights. Wearing headscarves in universities would exert pressure on women not covering their heads and was unduly favouring one particular group. According to the Constitutional Court, it was not possible to allow the wearing of Islamic headscarves at the present time in order to secure equality and freedom of conscience and thought for all.

5. In respect of the above, while noting the complexity of the situation, the Committee reiterates its concern that the current broad prohibition for students and civil servants from wearing head coverings may lead to situations incompatible with the principle of equality as envisaged by the Convention. As stated previously, such a requirement would in fact disproportionately affect Muslim women, possibly impairing or precluding altogether their right to equal access to education and employment, due to their religious practices. The Committee deems it necessary to recall that the Government has undertaken to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality and treatment in respect to employment and occupation, with a view to eliminating any discrimination, including on the basis of sex and religion. The Committee also recalls that, in order to be permissible under the Convention, any distinction or exclusion that has the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation must be based on the inherent requirements of a particular job. The Government is therefore requested to consider ways and means to promote and ensure equal access of Muslim women to employment in the civil service irrespective of their religious practice, and to keep the Committee informed of any development concerning this matter. Recalling that the access of women to education is one of the factors determining their participation in the labour force and that the general level of education of women and their labour force participation in Turkey remains very low, the Committee also requests the Government to provide information on measures taken or envisaged to ensure that all women, including Muslim women and girls, enjoy their equal rights to education, including at the university level. The Committee once again requests the Government to provide statistical information on the numbers of women who have been precluded from attending university or from obtaining or maintaining jobs in the public service, due to the ban on headscarves.

6. Position of public servants dismissed or transferred during the period of martial law. The Committee refers to its previous comments concerning the reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402. The Committee had requested information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their jobs. Subsequently, the Government stated that those who were not reinstated in their jobs either did not apply or no longer met the requirements of the job due to prison sentences handed down under the Penal Code. Recalling its request to the Government to supply detailed information on the percentage of the 955 transferred employees that were not reinstated due to the imposition of prison sentences, indicating for each employee the nature of the criminal charges brought and the penalties imposed, the Committee notes the Government’s statement to the effect that the information requested was not available in the records of the relevant ministries and establishments. The Committee reiterates its request and hopes that the Government will make every effort to obtain the necessary information and to provide it to the Committee with its next report.

7. Amendments to Martial Law Act No. 1402. The Committee notes that the Government’s report contains no new information concerning the need to repeal or amend section 3(d) of Martial Law Act No. 1402. The Committee recalls that section 3(d) of that Act vests martial law commanders with broad discretionary powers to transfer workers and public employees to other areas. In the view of the Committee, this could lead to discrimination in employment on the basis of political opinion in contravention of the Convention. The Committee has previously expressed its hope that appropriate changes would be made so as to ensure that measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination. Recalling the Government’s assurances that the right to appeal concerning section 3(d) of Act No. 1402 exists pursuant to article 125 of the Constitution and to Act No. 2577 concerning the procedures of administrative trials, the Committee once again requests the Government to provide statistical information on the number of appeals that have been lodged over the application of section 3(d) of Act No. 1402 and their outcomes.

8. Security investigations. The Committee recalls its previous comments on resolution No. 90/245 of 8 March 1990 of the Council of Ministers and section 1 of Act No. 4045 of 26 October 1990 concerning security investigations. It was concerned that the broad scope of the provisions contained therein may lead to discrimination in employment and occupation on the basis, inter alia, of political opinion. In this context, the Committee notes the adoption of the Regulations on Security Investigations and Investigation of Records of 14 February 2000, which replace the regulations on the same subject as contained in resolution No. 90/245 of 8 March 1990. The Committee notes that security investigations and investigations of records are limited to personnel to be employed in units and departments of ministries and public institutions and bodies holding classified information or documents, as well as personnel to be employed in the Turkish armed forces, in the security and intelligence organizations, and in prison and detention centres. The Government is requested to provide indications as to which units, departments and functions in ministries and other public institutions have been determined, under section 6 of the Regulations, as units and departments holding classified information. The Committee also asks the Government to explain the meaning and content of the clause "any connection with the police forces and intelligence units" which is a common element of the terms "security investigations" and "investigation of records" as contained in section 4(f) and (g). The Committee notes that a "security investigation" includes, inter alia, an assessment whether the person has engaged in "destructive or separatist activities" or has acted in contravention of Act. No. 5816 on offences committed against Atatürk or of the principles and reforms of Atatürk (sections 4(g) and 11(c)). It notes with interest that the meaning of "destructive and separatist activities" has been limited to "activities aiming to violate the indivisible integrity of the State with its territory and nation and to endanger the existence of the State and the republic or to destroy fundamental rights and freedoms" (section 4(k)). It requests the Government to provide information on how this provision is applied in practice, including indications as to the number and nature of cases involving an exclusion from employment or transferral resulting from the application of section 11(c) in connection with section 4(g) and (k). The Committee also wishes to receive a copy of the duty instructions, under section 12(e) of the Regulations, of the authorities authorized to investigate. Overall, the Committee observes that progress has been made in enhancing the precision of certain terms contained in the previous legislation and in limiting the scope of security investigations. However, the Committee emphasizes the continuing need to ensure that the measures taken by the authorities authorized to request and conduct security investigations are in practice in line with the requirements of the Convention.

9. The 1991 Anti-Terrorism Act. The Committee recalls its previous comments on the broad definitions of terrorism in section 1 of this Act and the offence of propaganda contained in section 8. It expressed concern that the definitions used would not appear to lay down sufficient criteria upon which protection against imprisonment, based on political opinion or some other ground mentioned in the Convention, would be ensured. The Committee previously noted the introduction of the element of intent in section 8, thus restricting broad interpretations and the possibility of discrimination and the Government’s statement that section 1 limits the definition of terrorism to violent acts. However, the Committee noted the fact that journalists have been convicted under the Anti-Terrorism Act for expressing their opinions. As the Committee understands that relevant legislative changes have occurred, it requests the Government to provide detailed information on any changes concerning the Anti-Terrorism Act or other legislation that would further restrict the possibility of journalists, writers and publishers being deprived of their employment or occupation for expressing their political opinion. The Committee once again asks the Government, in order to avoid any ambiguity, to consider revising section 1 of the Act to ensure that no provision of the Act would lead to a conviction for expressing political opinions by non-violent means. The Committee also requests the Government to continue to provide information on the number, nature and outcomes of cases under the Act involving convictions pronounced against journalists, writers and publishers.

10. Non-discrimination on other grounds. The Government reiterates that equality of all Turkish citizens before the law is guaranteed under Turkish legislation and that they face no discrimination whatsoever as far as their statutory rights are concerned. The Government also states that present-day Turkey contains a multitude of ethnic, religious and cultural elements and that different ethnic identities, including the Kurdish, are acknowledged and accepted. The Committee recalls that while legislative provisions on equality and non-discrimination are an important element of a national equality policy in accordance with Article 2 of the Convention, they cannot constitute by themselves such a policy. The Convention provides for the elimination of discrimination in law and practice and, to this end, requires proactive measures towards achieving equality of opportunity and treatment of all workers. In this connection, the Committee notes the information provided by the Government on the projects to promote educational opportunities and employment carried out by the South-eastern Anatolia Project Regional Development Administration, including for nomadic/semi-nomadic communities. Noting from information available to it that recent reforms have introduced the possibility of private schools teaching in languages other than Turkish, the Committee asks the Government to provide information on this reform and on any other measures adopted or envisaged to promote equality in employment and occupation, irrespective of race, colour, national extraction and social origin.

The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  Discrimination on the basis of sex.  The Committee notes the statistical information for 1998 supplied by the Government relative to the situation of women in education and employment, as well as the information contained in the report on the Project for Promoting the Employment of Women (attached to the Government’s report) concerning the situation of women in the Turkish labour market in 1996. In this regard, the Committee notes the extremely low level of education among women. The data provided indicate that, as of October 1998, almost four times as many women as men (22.4 per cent of women compared with 5.9 per cent of men) were illiterate. The percentage of women completing primary school appears to have increased from 48 per cent in 1996 to 51.1 per cent in 1998.The percentage of women in the labour force remains low, at 27.9 per cent.

2.  The Committee notes from the report on the Project that 58 per cent of Turkish women have not attended any training courses outside of the official education system. Of those receiving training, a large number have attended classes in subjects such as sewing, embroidery and carpet weaving, which are considered to be traditional female occupations. In this connection, the Committee points out that vocational guidance and training is intended to play an important role in opening a wide range of occupations free of considerations based on stereotypes according to which certain trades or occupations are reserved for a particular sex, which in turn permits the promotion of a genuine policy of equality of opportunity and treatment. In its previous direct request, the Committee noted the information supplied by the Government in its combined second and third periodic country reports to the UN Committee on the Elimination of Discrimination Against Women (CEDAW) concerning its efforts to address the disadvantages faced by women in the Turkish labour market, particularly through revision of legislation, improving vocational training and through the National Employment Agency’s Employment and Education Project. In this regard, the Committee notes with interest that, out of 3,379 employment-guaranteed training courses conducted by the National Employment Agency since 1993, approximately 60 per cent of the participants were women and that the participation rate of women in 787 business start-up programmes was 84 per cent for the same period. The Committee requests the Government to continue to supply information on progress made in this regard, and to provide a copy of the Employment and Education Project as well as statistical information on the participation of women in the workforce and in education. The Committee further requests the Government to provide information in its next report, including up-to-date and comprehensive statistical data, on the percentage of women in employment, showing the percentage of women employed in the urban population, the percentage employed in the rural population, and the percentages of women in and their distribution by sector and industry in both public and private sector employment.

3.  Referring to its previous comments on the legal framework regulating the situation of women in work and family life, the Committee recalls the Government’s indication in its report to CEDAW that a bill had been prepared which addresses certain discriminatory provisions in the Turkish Civil Code and that all discriminatory clauses in the national legislation are under review, including section 17(1)(a) of the Labour Code, which entitles an employer to terminate a female worker’s contract without notice at the end of the paid maternity leave period. The Committee requests the Government to supply information on the status of the proposed legislation in its next report and to provide copies of any amendments to the Civil and Labour Codes, once they are adopted.

4.  Further to its previous comments on the issue of the appointment of women to high administrative posts, the Committee notes the Government’s statement that the establishment of a quota system is being considered with a view to increasing the number of women representatives elected to the local (provincial and municipal) assemblies. In respect of women’s access to higher-level posts in the public administration, including positions of decision-making authority, the Committee notes that the right of any person not to suffer discrimination under the Convention also relates to advancement in the course of employment and that, for a system of advancement to be free of discrimination, it must first eliminate vertical occupational segregation, a phenomenon that commonly affects women. The Committee reminds the Government that positive action measures could include, apart from quotas, the provision of training and occupational guidance designed to enable women to compete more effectively for higher posts. The Committee asks the Government to continue to provide information on measures taken to improve women’s access to higher level positions in the public administration, including statistical data on the distribution of men and women in the different posts and at the different levels of administration.

5.  The 1979 discipline rules pertaining to the police force.  The Government indicates that sections 31 through 33 of the 1979 discipline rules are intended to ensure the objectivity and impartiality of the police when assigned to tasks such as providing security for meetings and demonstrations and dispersing illegal meetings and demonstrations. The Government further indicates that this impartiality is considered to be an inherent requirement of the job. The Committee recalls that in the public service, particularly with regard to highly responsible posts or positions of trust, a certain obligation of neutrality can be required without nullifying the protection afforded by the Convention (see General Survey of 1998, at paragraph 46). Referring to its previous comments, the Committee points out that cases in which political opinion is taken into consideration as a prerequisite for a given job should be objectively examined under judicial scrutiny to determine whether this prerequisite is truly warranted by the inherent requirements of the position. The Committee therefore asks the Government to indicate whether any judicial or administrative tribunals have applied and interpreted sections 31 through 33 of the 1979 discipline rules and to provide copies of any such decisions.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the Government’s report, as well as the attached comments of the Confederation of Turkish Employers’ Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ).

2.  The TISK states that there has been a marked increase in the employment of women in the private sector, citing the Labour World Statistics issued by the Ministry of Labour and Social Security, copies of which were not received by the Office. The Committee notes, however, that the statistical information supplied by the Government in its report points to a decrease in the employment of women overall (from 34 per cent in 1990 to 27.9 per cent in 1998), with the rate of employment for urban women being even lower (10 per cent). Based upon the information contained in the report relative to the situation of women in education and employment, the Committee notes the extremely low level of education among women. The data provided indicate that, as of October 1998, almost four times as many women as men were illiterate. The Committee points out that, if parts of the population are not given the opportunity to attain the same level of education as others, these discrepancies will continue to extend to employment opportunities.

3.  Discrimination on the basis of sex and religion.  In a communication dated 9 May 1999, the Workers’ House of the Islamic Republic of Iran, a workers’ organization, alleged that the Government of Turkey had failed to observe the Convention, referring to discrimination on the basis of sex, religion and political opinion. The Workers’ House stated that a female legislator from the Pro-Islamic Virtue Party was treated in a discriminatory manner on these bases when she arrived for her swearing-in ceremony at the Grand National Assembly wearing a headscarf in the Islamic manner and that, as a result of protests from other legislators, she was forced to leave the hall without being sworn in. The Workers’ House also refers to a ban on the wearing of headscarves at universities, academic centres and by public servants as constituting discrimination in employment in violation of the Convention.

4.  In response to the Government’s request for clarification regarding the applicability of the Convention to Members of Parliament or legislators, the Committee refers the Government to paragraph 79 of its 1996 Special Survey on equality in employment and occupation, which discusses the meaning of the terms "occupation", "persons in employment" and "work" and makes it clear that the scope of the Convention is very broad, extending to all sectors of activity and covering employment in both public and private sectors (see also 1988 General Survey on equality in employment and occupation, paragraph 86, citing ILO: Discrimination in the Field of Employment and Occupation, Report IV(1), International Labour Conference (42nd Session, 1958), appendix). The Committee also notes that, pursuant to Article 3(d) of the Convention, ratifying States undertake, by methods appropriate to national conditions and practice, to pursue a national policy of equality of opportunity and treatment in respect of employment under the direct control of a national authority.

5.  The Government acknowledges in its report that the female legislator’s entrance into the general assembly hall in a headscarf gave rise to protests from certain Members of Parliament. The Government makes reference to the dress code for female and male legislators which requires female legislators to wear a jacket and skirt within the Hall, but states that the practice of wearing a headscarf does not prevent women from being elected to the position of legislator. In this context, the Government’s report refers to another female legislator who was sworn in without incident on the same day, who apparently was not wearing a headscarf, although she is known to wear one in her daily life. Noting that the dress code does not appear to preclude expressly the wearing of headscarves by female legislators, the Committee requests the Government to supply a copy of section 56 of the Standing Orders of the Turkish Grand National Assembly.

6.  The Committee notes that the Turkish Constitution provides that Turkey is a democratic, secular and social State, establishes the principle of secularism in regard to State affairs and politics, and provides for freedom from religious discrimination. In the context of the Workers’ House communication, the Committee recalls that religious considerations as the basis of distinctions in social and occupational life may vary in nature (see paragraph 41 of its 1996 Special Survey on equality in employment and occupation). The possibility of discrimination also often arises from the absence of religious belief or from belief in different ethical principles, from a lack of religious freedom or from intolerance, in particular where one religion has been established as the religion of the State, where the State is officially anti-religious, or where the dominant political doctrine is hostile to all religions (ibid.). The Convention’s aim is to provide protection against discrimination on the basis of religion affecting employment and occupation, which often results from a lack of religious freedom or from intolerance and which may arise in a number of situations. In some cases, discrimination may arise from an attitude of intolerance towards persons who profess a particular religion or particular religious beliefs. The free exercise of a religious practice may in certain circumstances be hindered by the constraints of an employment or occupation, notably in cases where the exercise of a religion requires a particular kind of clothing (see 1988 General Survey, paragraph 47). In this regard, the Committee points out that the protection afforded by the Convention, with regard to equality of opportunity and treatment without discrimination on the basis of religion would be void of substance, if it did not include at least the most important aspects of religious practice (see 1988 General Survey, paragraph 51).

7.  The Government’s report indicates, as do the Workers’ House comments, that public servants and students are required to uncover their heads while on duty or inside schools. This requirement would affect those persons - predominately women - who cover their heads in the exercise of a religious practice. The Committee points out that apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics could result in indirect discrimination on the grounds covered in Article 1(1)(a) of the Convention. Indirect discrimination can be said to occur when the same condition, treatment or criterion is applied to all persons, but its application results in a disproportionately harsh impact on some persons on the basis of characteristics such as sex or religion, and is not closely related to the inherent requirements of the job (see 1996 Special Survey on equality in employment and occupation, paragraphs 25 and 26). The requirement that public servants and students uncover their heads would in fact disproportionately affect Muslim women, possibly impairing or precluding altogether their right to equal access to education and employment under the Convention due to their religious practices.

8.  The potential discriminatory effect of the ban on headscarves takes on particular significance when viewed in the light of information supplied by the Government indicating that women’s level of education is very low in Turkey (one out of every two women jobseekers has only a primary school education), as is their level of participation in the work force. While the Committee has on other occasions expressed its concern over the impact of dress code requirements imposing the wearing of headscarves or other particular kinds of dress on all female public servants, it is equally concerned by the existence of requirements that prohibit anyone from dressing in accordance with their religious requirements, particularly when the wearing of headscarves, for example, would not in any way impair their ability to perform the tasks required in a specific job or occupation. In this regard, the Committee requests the Government to supply a copy of the regulations referred to in the report and to indicate any measures taken or contemplated to ensure that the regulations in question do not affect the right of Muslim women to pursue public sector employment or educational opportunities. The Committee also requests the Government to provide copies of the judgments issued by the Supreme Court of Appeals and Council of State (Supreme Administrative Court) to which reference is made in the Government’s report. The Committee also points to the need to promote respect, tolerance, understanding and acceptance among the various religious and ethnic groups as part of any policy to promote equal opportunity and treatment in employment. It requests the Government to indicate any measures it has taken to raise public awareness in this regard.

9.  Position of public servants dismissed or transferred during the period of martial law, 1980-87.  The Committee refers to its previous comments concerning the reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402. Further to its previous observation requesting information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their posts, the Committee notes the Government’s statement that those who were not reinstated either did not apply or no longer met the requirements of the job due to prison sentences handed down under the Penal Code. The Committee asks the Government to supply detailed information on the percentage of the 955 transferred employees that were not reinstated due to the imposition of prison sentences, indicating for each such employee the nature of the criminal charges brought and the penalties imposed. In respect of the reinstatement of military and civilian members of the armed forces and civilian members of the security forces under Act No. 4045, the Committee notes the Government’s statement that 148 personnel were reinstated to equivalent positions in other public institutions.

10.  Amendments to Martial Law Act No. 1402.  The Government’s report contains no reply to the Committee’s previous comments concerning the need to repeal or amend section 3(d) of Martial Law Act No. 1402, which vests martial law commanders with broad powers to dismiss workers and public servants or transfer them to other areas, a discretionary power which in the Committee’s view could lead to discrimination in employment on the basis of political opinion in contravention of the Convention. TÜRK-IŞ states that section 3(d) of Act No. 1402 continues to vest martial law commanders with discretionary authority to dismiss workers and public servants and send them to another region without any court ruling and without providing for the right to appeal established in Article 4 of the Convention. The Committee repeats its request that the Government provide statistical information on the number of appeals arising out of the application of section 3(d) of Act No. 1402 and their outcomes.

11.  Measures under the 1990 Security Investigation Regulations.  The Committee recalls its previous comments on the manner in which the Government is ensuring that the 1990 Regulations, which are very broad in definition and scope, are not being applied so as to prohibit employment in violation of the Convention. The Committee notes from the report that the provisions of the 1990 Regulations that do not conflict with the provisions of Act No. 4045 are still applicable and that the General Directorate of Security continues to carry out security investigations in accordance with both Act No. 4045 and those provisions of the 1990 Regulations that are in conformity with the Act. Recalling that, according to provisional section 7 of Act No. 4045, implementing regulations were to be adopted within six months of the entry into force of the Act on 2 November 1994, the Committee asks the Government to continue to provide information on the status of the enactment of the implementing regulations. The Committee further requests the Government to indicate the provisions of the 1990 Regulations that are applied by the General Directorate of Security in the course of security investigations as well as detailed information on the manner in which the provisions are applied in practice.

12.  The 1991 Anti-Terrorism Act.  Referring to its earlier comments concerning section 1 of the Anti-Terrorism Act, which defines acts of terrorism and imposes a sentence of imprisonment for such acts, the Committee notes the Government’s statement that section 1 limits the definition of terrorism to violent acts. The Committee notes that section 1 defines terrorism to include all acts instigated by one or more persons belonging to an organization aiming to change the characteristics and political, legal, social, secular or economic order of the country. In this connection, the United Nations Commission on Human Rights noted that several journalists have been convicted under the Anti-Terrorism Act for expressing their opinions and for reporting on sensitive matters, such as the so‑called Kurdish question (E/CN.4/1999/62/Add.2, 28 December 1998, paragraph 8). The Committee once again draws the Government’s attention to paragraph 45 of its 1996 Special Survey on equality in employment and occupation, which states that the protection afforded by the Convention against discrimination in employment and occupation extends to activities expressing or demonstrating opposition to the established political principles, or simply a different opinion. The protection of political opinion does not apply where violent methods are used to express those opinions. The Committee therefore once again asks the Government to consider restricting the scope of section 1 of the Act to ensure that persons are not deprived of their employment or occupation pursuant to the Act on the grounds of their political opinion.

13.  In respect of section 8 of the Anti-Terrorism Act (which contains a very broad definition of propaganda, carrying a sentence of imprisonment), the Committee notes that a new Bill to amend this provision was submitted to the Turkish Grand National Assembly, but that it has not yet been enacted. The Committee would be grateful if the Government would continue to keep it informed of the status of the Bill, and supply a copy once it is adopted. It would also appreciate receiving copies of any judicial or administrative decisions interpreting and applying sections 1 or 8 of the Act.

14.  Non-discrimination on other grounds.  The Committee notes the Government’s statement that all Turkish citizens are equal before the law regardless of language, race, colour, sex, political opinion, philosophical beliefs, religion, ethnic origin or other affiliations. The Committee recalls its previous direct request for information on the grounds of discrimination on the basis of race, national extraction and colour under Article 1(1)(a) of the Convention, and notes that the Government’s report does not respond to the Committee’s request for information on measures taken to promote equality of opportunity and treatment for minority groups such as the Kurds. It therefore repeats its request for concrete information on any measures taken to secure application of the principles of the Convention with regard to Turkish minority groups, including the Kurdish minority.

15.  The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes with interest the development of the seventh five-year development plan for the period 1996-2000, which has as one of its objectives the provision of women's participation in every field of social life as individuals, and of which equal status is the fundamental principle, and states that measures will be taken to improve women's status in the fields of education, health, working life, social security and employment, and to remove existing inequalities. With regard to the arrangements foreseen concerning the legal and institutional framework, the Committee notes from the combined second and third periodic country report of Turkey to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW), that an academic Commission was formed with a view to completing a draft civil law with regard to equality of treatment of women. It also notes the statement of the Turkish delegation to CEDAW that all discriminatory clauses are under review including section 17/1a of the Labour Code, under which the employer has the right to terminate a female worker's contract without notice at the end of the paid maternity leave. The Committee requests the Government to inform it of the status of the law revision.

2. The Committee notes the Government's statement in its report to CEDAW that gender equality in education has a direct impact on opportunities and patterns of women's employment. It notes that, according to the report, the persistent problems with regard to employment of women can be summarized as follows: (1) the rate of women's participation in the workforce is low and shows a decrease from 34 per cent in 1990 to 30 per cent in 1995; (2) the vast majority of the women in the workforce are in the agricultural sector working as unpaid family workers; (3) women's employment in the non-agricultural and non-rural sectors is highly marginal not only quantatively, but also in terms of their concentration in areas of work which may be considered as appropriate female tasks, such as textiles, food industry and the like; (4) urban unemployment rates for women is more than double that of men; (5) the urban informal sector provides the greatest work opportunity for women of low income households, which means that women are by and large excluded from the legal and social protection and benefits available in the formal sector.

3. The Committee notes from the report to CEDAW the efforts undertaken by the Government to address some of the problems enumerated, through, inter alia, credit allocation, revision of legislation, improving vocational training, as well as the activities carried out within the framework of the Employment and Education Project carried out by the Turkish Employment Agency. It requests the Government to continue to inform it of progress made in this regard, and provide it with the booklet on the Employment and Education Project which, although indicated, was not appended to the report. In relation with this, the Committee notes from the CEDAW report the establishment in 1993 of the Department of Statistics on Social Structure and Women, and requests the Government to provide it with statistics on women's participation in the workforce and education so as to be better able to analyse the progress made.

4. The Committee notes that the Government's report is silent on the issue of appointment of women to high administrative posts and must therefore again request the Government to continue to inform it of the measures taken to improve the equal access of women to positions of responsibility in the administration.

5. The Committee notes the Government's statements that according to its national legislation and to the international agreements to which Turkey is a party, there are no "ethnic minorities", the definition of "minority" only refers to Jews, Armenians and Orthodox Greeks, as recognized under the Lausanne Treaty of 1923, and that, whether a Turkish citizen belongs to a religious minority or not, all citizens in Turkey enjoy the same rights and freedoms as regards employment, occupation and equality before the law. With specific reference to the grounds of discrimination on the basis of race, national extraction and colour as contained in Article 1(a) of the Convention, the Committee requests the Government to provide information on measures taken to promote equality of opportunity and treatment for groups such as the Kurds.

6. The Committee notes that, under sections (31), (32) and (33) of the 1979 Discipline Rules Pertaining to the Police Force provided by the Government, officers of the police force are prohibited, under penalty of discharge from the force, from participating in any outdoor meetings or demonstration marches which are organized for political purposes, any outdoor or indoor meetings or demonstration marches which are neither scientific, cultural or technical in nature and which are organized by trade unions or by associations of which one is not a member, and from founding an association or joining associations other than sports associations or founding an association other than the Foundation for Strengthening the Turkish Police Force or taking office in the organs of other foundations. In this respect, the Committee recalls its 1996 Special Survey on equality in employment and occupation in which it stated that in cases in which the ground of political opinion is taken into consideration as a prerequisite for a given job, it should be objectively examined, under judicial scrutiny, to determine if this prerequisite is really justified by the inherent requirements of the job. The Committee requests the Government to provide information on the application of the said paragraphs, including how the concept of the inherent requirements of the job is safeguarded when said paragraphs are applied.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes the Government's report and the comments of the Confederation of Turkish Employers' Associations (TISK). It also notes the Government's previous report and the previous comments of the Confederation of Turkish Trade Unions (TURK-IS) and of TISK which it had been unable to examine at its last session. The Committee notes that, according to TISK, the practical application of the Convention poses no problem from the point of view of the private sector. The comments of TURK-IS are dealt with under point 3.

2. Position of public servants dismissed or transferred during the period of martial law 1980-87. With regard to action taken to give effect to the 1989 Council of State ruling concerning reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402, the Committee recalls that it has been following the reinstatement process of thousands of workers for a number of years. In its previous observation, the Committee had requested information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their posts. The Government has replied that those who were not reinstated either did not apply or no longer meet the requirements for the job. In this regard, the Committee requests the Government to indicate whether all transferred workers were informed of their right to be reinstated, and to continue to provide detailed information on the number of applications processed and their outcome concerning reinstatement and compensation. With reference to its previous observation concerning reinstatement of military and civilian members of the armed forces and members of the security forces under Act No. 4045, the Committee again requests the Government to indicate whether any applications of the above-mentioned personnel for office or employment in public institutions and bodies other than their own institutions have been evaluated by the State Personnel Department as required in such cases under provisional section 5, and the result of such evaluation.

3. Amendments to Martial Law Act No. 1402. The Committee recalls that, in previous observations, it had noted that Act No. 4045 does not amend section 3(d) of Martial Law Act No. 1402, leaving unaltered the broad powers vested in martial law commanders when martial law is applicable, and had expressed the hope that appropriate changes would be made to ensure that the measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination on the basis of, inter alia, political opinion. TURK-IS states in its comments that Martial Law Act. No. 1402 continues to authorize martial law commanders to dismiss workers and public servants or send them to other areas without a court ruling and without observing the right to appeal provided for in Article 4 of the Convention. Noting the Government's statement that martial law as defined in article 122 of the Turkish Constitution is an exceptional and temporary measure, that the exercise of martial law was lifted as of 19 July 1987, and that some limitations had been placed on martial law commanders, the Committee is nevertheless of the opinion that commanders continue to be vested with broad powers which could potentially lead to discrimination in employment of public employees on the basis of political opinion in contradiction to the Convention. It therefore calls upon the Government, once again, to take immediate action to repeal or to amend the relevant law accordingly. Noting the Government's assurances given in its reply that the right of appeal for the application of section 3(d) of Act No. 1402 exists pursuant to article 125 of the Constitution and is further ensured by the Act Concerning the Procedure of Administrative Trials, No. 2577, the Committee once again requests the Government to provide statistical information on the number of appeals launched under this section and their outcomes.

4. Measures taken under the 1990 Security Investigation Regulation. The Committee notes that the "provisional" sections of Act No. 4045 were only applicable for a six-month period following its entry into force on 2 November 1994, but that, according to the Government, the implementing regulations, which, according to provisional section 7 of the Act, were to be adopted within six months of the entry into force of the Act, have not yet been adopted, and that therefore those provisions of the 1990 Regulation that do not contradict the provisions of Act No. 4045 are still applicable. The Committee would appreciate receiving information on the status of the implementing regulations and of the consequent repeal of the 1990 Security Investigation Regulation, as well as details on the use of the Regulation until its repeal.

5. 1991 Fight against Terrorism Act. The Committee notes with interest the 27 October 1995 amendment of section 8 of this Act (which contains a very broad definition of propaganda, carrying a sentence of imprisonment) introducing the element of intent or aim, thus restricting broad interpretations and the possibility of discrimination. It also notes, however, that section 1 of the Act (which introduced a very broad definition of terrorism, carrying a sentence of imprisonment) has not been amended. In this connection, and with reference to its previous observation, the Committee recalls that the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1995/L.10/Add.7 of August 1995) strongly condemned, in Turkey, the imprisonment of intellectuals, scholars, writers, journalists and parliamentarians on the grounds of their opinions. Considering that section 1 of the Fight against Terrorism Act had been cited by the Committee in its previous observations as being too broad in scope and as permitting possible discrimination on grounds prohibited by the Convention, the Committee draws the Government's attention to its 1996 Special Survey on equality in employment and occupation in which it stated that, in protecting individuals against discrimination in employment and occupation on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles, or simply a different opinion. It also stated that the protection of political opinion only applies to opinions which are either expressed or demonstrated, and does not apply if violent methods are used to express these opinions. The Committee requests the Government to consider further amendment of the Act to ensure that persons are not deprived of employment through imprisonment under this Act as a result of discrimination on any of the grounds set out in Article 1, paragraph 1(a), of the Convention.

6. The Committee notes with interest that the Constitutional Court repealed section 159 of the Civil Code, which required a husband's consent in order for his wife to be able to take up employment, on the grounds of inconsistency with the Constitution.

The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied in the Government's report, and in particular it notes with interest that the State Employment Agency no longer asks employers to specify sex when notifying vacancies to the agency.

1. The Committee notes with interest the information supplied by the Government on the various projects under way to improve women's equality in the workplace, including improvement of the databases concerning women, sexual discrimination and education. Now that the General Directorate of the Status and Problems of Women is part of the newly created Ministry of State for Women, Family and Social Services, the Committee requests the Government to inform it, in its next report, of the activities of the Directorate vis-à-vis the State Planning Organization's five-year plan, which began in 1990.

2. The Committee thanks the Government for supplying a copy of the 1930 legislation, as amended, under which decisions have been taken concerning the appointment of women to high administrative posts. The Committee notes, however, that, according to the Government's report, only one female governor is in active duty and seven female district governors are currently receiving training. It asks the Government to continue to inform it of the measures taken to improve the equal access of women to positions of responsibility in the administration.

3. While noting the 1993 figures supplied by the Government on the large number of participants from disadvantaged groups receiving vocational training, especially training leading to guaranteed employment, the Committee nevertheless notes that the report gives no further details on activities to promote equality of opportunity and treatment for groups such as ethnic minorities. It accordingly asks the Government to supply such information in its next report.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee takes note of the Government's report and the comments of the Turkish Confederation of Employers' Associations (TISK) (describing Turkey's application of the Convention in the private sector) and of the Confederation of Turkish Trade Unions (TURK-IS) (regretting that Martial Law Act No. 1402 continues in force, contravening the Convention).

It also notes the receipt, during the Committee's session, of a further brief report to which are annexed fresh comments, in Turkish, of TURK-IS and TISK. The Committee is obliged to put off its examination of this material until its next session.

1. Position of public servants dismissed or transferred during the period of martial law 1980-87. With regard to action taken to give effect to the 1989 Council of State ruling concerning reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402, the Committee notes the Government's statement that no definitive figures can be given on dismissed or transferred personnel because of the involvement of the administrative tribunals. The Government is, however, able to report that, of 4,614 civil servants dismissed under the Act, 3,541 applied for reinstatement, 3,515 were readmitted, and 3,399 received compensation; and of 7,023 civil servants transferred, 6,270 returned to their former posts; and of the 267 public employees transferred, only 65 returned to their former posts. The Committee requests the Government to inform it whether any further cases are continuing. Please also clarify the reasons why 26 of the applicant dismissed civil servants were not reinstated, and why 753 of the applicant transferred civil servants, and the 202 transferred public employees, were not returned to their former posts.

2. Amendments to Martial Law Act No. 1402. The Committee notes with interest the adoption, on 26 October 1994, of Act No. 4045 to amend Act No. 1402, limiting security investigations and archive researches to the personnel of public bodies and institutions dealing with classified information, defined strictly, and to military, intelligence agency, police and prison staff; and ordering the removal of all records, other than judicial rulings, relating to such investigations from personnel files of persons coming under the Act. The amendment also permits persons who had been prevented from taking public service entrance examinations or employment since 1980 on grounds of security checks, to take the examinations or employment regardless of age, provided that they still have the qualifications required and there is no final court ruling applying to them. The amendment formally permits reinstatement, within 60 days, of all public employees dismissed pursuant to section 2 of the principal Act subject to certain formalities (similar to those set out in the above-mentioned 1989 Council of State ruling).

3. The Committee notes, however, that section 2 of the principal Act (empowering martial law commanders to request dismissal or transfer to other regions of public servants) has not been repealed as requested in earlier observations, although it has been amended to limit the power of martial law commanders to requesting "assignment or suspension from duties with a view to assignment". Although two new subsections allow such suspended public employees to take up employment in any local administration that wishes to employ them outside the jurisdiction of the martial law commander requesting suspension, with immediate lifting of the suspension and protection of salary, the fact remains that martial law commanders continue to be vested with broad powers which could potentially lead to discrimination in conditions of employment of public employees, on the basis of political opinion. Furthermore, "provisional" section 5 of the amending Act excludes from its coverage military and civilian members of the armed forces and members of the security forces. The Committee asks the Government to clarify when the "provisional" sections of Act No. 4045 cease to be applied.

4. Noting that regulations for the implementation of the amending Act are to be issued, the Committee requests the Government to supply information, in its next report, on the impact of these provisions in practice, and in particular to give information on how those categories of staff excluded from coverage of the amendment are protected against discrimination in access to training, access to employment and terms and conditions of employment, on the basis of political opinion. In this connection, the Committee asks the Government to supply a copy of the Security Organization Discipline Rules and Regulations, which it has been requesting since 1991 in direct requests.

5. The Committee also notes that Act No. 4045 does not amend section 3(d) of the principal Act, which permits martial law commanders to expel for five years from the regions under their control, persons who are considered a threat to national security or public order. The Committee had expressed the hope that appropriate changes would be made so as to ensure that the measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination on the basis of, inter alia, political opinion. Recalling that the Committee's concerns were reflected in the above-mentioned 1989 ruling of the Council of State, the Committee asks the Government to supply information on the status of section 3(d), and on any use that has been made of it, including any appeals (for example through the national Human Rights Commission). In this connection, the Committee recalls its opinion that the right of appeal under article 125 of the Constitution alone is insufficient, in these circumstances, to ensure that Article 4 of the Convention is being applied.

6. Measures taken under the 1990 Security Investigation Regulation. The Committee notes with interest that, according to "provisional" section 7 of Act No. 4045, those provisions of this Regulation which are not in contradiction with the Act will continue in force only until implementing regulations under Act No. 4045 are adopted, and that such regulations are to be adopted within six months of the entry into force of the Act. Since the Committee had pointed out in its previous observation that the 1990 Regulation is of too broad a scope and application and operates in an excessively broad framework when read together with the 1991 Fight against Terrorism Act, it requests the Government to inform it, in its next report, of the adoption of the implementing regulations and of the consequent repeal of the Security Investigation Regulation. The Committee would also appreciate receiving details of any use of the 1990 Regulation until its repeal.

7. 1991 Fight against Terrorism Act. The Committee notes from the Government's report that parliamentary work to amend this Act (which introduced a very broad definition of terrorism and of propaganda, both of which carry sentences of imprisonment) is still in progress. The Committee also notes that, by a decision dated 31 March 1992, the Constitutional Court repealed with effect on 27 January 1993, certain of its provisions, but upheld the constitutionality of sections 1 and 8. These sections had been cited by the Committee in its previous observation as being too broad in scope and as permitting possible discrimination on grounds prohibited by the Convention. The Committee requests the Government to inform it of Parliament's progress in amending the Act so as to ensure that persons are not deprived of employment through imprisonment under this Act as a result of discrimination on any of the grounds set out in Article 1, paragraph 1(a), of the Convention.

8. In this connection, the Committee notes that the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, in a decision E/CN.4/Sub.2/1995/L.10/Add.7 of August 1995, strongly condemned the imprisonment of intellectuals, scholars, writers, journalists and parliamentarians on the ground of their opinions. The Committee requests the Government to inform it of the implications for the national policy of non-discrimination in employment and occupation of such instances of imprisonment.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information provided in the Government's report and the attached documentation.

1. The Committee notes with interest the establishment of the General Directorate of the Status and Problems of Women on 25 October 1990 and its responsibilities and it would be grateful if the Government would continue to provide detailed information on the activities carried out by this Directorate to promote equality of opportunity and treatment in employment and occupation for women.

2. The Committee notes with interest the increased access of women to posts such as district or provincial governorships by virtue of a Governmental Decision dated July 1991 and the increased recruitment of women in the Turkish Armed Forces. It would be grateful if the Government would supply a copy of this Decision.

3. The Committee welcomes the extensive labour force statistics disaggregated by sex, educational level and occupation supplied by the Government and hopes the Government will continue to provide such information. With regard to the statistics on placement services, the Committee would be grateful if the Government would indicate whether job placements are designated as being either male or female jobs.

4. The Committee notes the increase in the vocational training courses provided to persons who may be considered disadvantaged in the workforce, such as ethnic Turks from Bulgaria and disabled persons, and requests the Government to indicate the results in terms of attaining employment for such persons. It also requests the Government to provide information on the measures taken in accordance with Article 3 of the Convention to promote equality of opportunity and treatment with a view to eliminating discrimination against other disadvantaged groups such as ethnic minorities.

5. Disciplinary action. The Committee must reiterate its request to the Government to supply a copy of the Security Organization Discipline Rules and Regulations with its next report.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee takes note of the discussions in the Conference Committee in 1991, the Government's report and attached documentation, and the appended comments received from the Turkish Confederation of Employers' Associations and the Confederation of Turkish Unions (TURK-IS). In its comments, the Turkish Confederation of Employers' Associations expressed its agreement with the information and explanations given in the 1991 Conference Committee by the Turkish Government representative. TURK-IS, in its comments, questioned whether anything had been done to replace or amend Law No. 1402 respecting martial law and it hoped that this Committee would continue to follow up on the application of the Security Investigation Regulations adopted in 1990.

Position of public servants dismissed or transferred between 1980 and 1987 during the period of martial law

2. In its 1991 observation, the Committee had noted the adoption of the Council of State ruling on 7 December 1989, which concluded that civil servants, other public employees and workers in public services whose employment had been terminated on demand of martial law commanders, pursuant to Martial Law Act No. 1402, will have to be reinstated in their jobs by the institutions concerned in the regions where their employment was terminated, provided that they have not lost the qualifications required at the time of their first appointment. The Committee had also noted from the opinion of the Attorney-General of the Council of State that the decisions of martial law commanders on dismissals and transfers in employment under Act No. 1402 were considered not to be in compliance with Article 4 of Convention No. 111. The Committee hoped that the ruling would be fully applied to the benefit of all persons whose employment had been affected, and that the contents of the ruling would be taken into consideration in the amendments to the Martial Law Act.

3. The Committee notes from the information given in the Conference Commmittee in 1991 and from the Government's report that the Council of State ruling continues to be implemented, and that applications for reinstatement continue to be processed in accordance with the terms of the ruling.

4. The Committee notes with satisfaction the Government's statement that 68 of the 72 university faculty members who had requested reinstatement had been returned to their former positions as a result of measures taken, including the creation of additional posts, in accordance with the Council of State ruling. The Government reports that, of the remaining four faculty members who had been denied reinstatement, one had lost his qualifications as a civil servant; the court had ruled against the reinstatement of the second; the third had not completed the necessary documents; and the fourth had already reached retirement age.

5. The Committee had asked the Government to supply detailed information on the 358 public servants who had been dismissed under martial law and who had had their requests for reinstatement denied. It had also requested clarification on the meaning of sections 48 and 98 of the Civil Servants Act No. 657 which had been mentioned as the legal obstacle to the reinstatement of these persons. The Committee takes note of the clarifications provided by the Government in this regard. It notes with interest that, as a result of the adoption of the Fight Against Terrorism Act, No. 3713 of 12 April 1991, 161 officials had had their rights restored, and additional applications for reinstatement are being processed. According to the Government, the 197 public servants who were not yet reinstated were still under sentence, or they had been convicted for degrading offences such as bribery, theft, embezzlement and fraud, as set out in Act No. 657. The Committee hopes that the applications which continue to be processed are evaluated in accordance with the Council of State ruling and that, in its next report, the Government will continue to keep the Committee informed on the employment status of the officials whose requests for reinstatement had been denied.

6. The Committee had noted that the Council of State ruling had removed the obstacles preventing the persons who had been transferred to other regions during martial law from returning to their place of origin. The Committee had requested the Government to provide, in respect of the 4,870 persons who had been transferred, specific information and statistics on their return. The Committee notes the Government's indications that some of the transferees had returned to the posts they had previously occupied by means of normal legal procedures, others through the Council of State ruling and others by direct application. The Government reports that no appeals or requests are outstanding. The Committee must once again repeat its request for more specific information and statistics on the persons who have returned to their previous regions and positions.

7. The Committee had requested information on the compensation received by all persons whose employment was affected by decisions under Act No. 1402, who have filed for compensation for losses and who have received judgements in their favour. The Committee notes the Government's general statement that all reinstated people have been compensated. It must, however, again request more specific information on the number of people who filed for compensation, including those who did not seek or receive reinstatement, the judgements rendered and the enforcement of those judgements.

Proposed amendments to Act No. 1402 respecting martial law

8. The Committee notes from the Government's report that the bill to amend Act No. 1402, which had been the subject of previous comments, had become obsolete since it was not enacted before the expiry of the Parliamentary Session (before the general elections held in October 1991). The Committee further notes that a new bill, drafted by the Ministry of Justice, was submitted to the Council of Ministers in October 1992 and is expected to be brought before Parliament in early 1993. The Government reports that the new bill will repeal section 2 of Act No. 1402, which empowers the martial law commanders to request dismissal or transfer of public servants to other regions, and that the bill will require reinstatement, return to place of origin and compensation for those so transferred or dismissed. The Committee trusts that the Government will be able to report that this section has been repealed as requested by the Committee for many years.

9. The Committee also trusts that appropriate amendment will be made to section 3(d) of Act No. 1402, which permits the expulsion of persons who are considered a threat to national security or public order for five years, so as to ensure that the measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination on the basis, inter alia, of political opinion. In this regard, the Committee again points that the right of appeal under article 125 of the Constitution alone is insufficient to ensure such protection. The Committee hopes that these considerations, which it has found to be reflected in the opinion of the Attorney-General of the Council of State, will be taken fully into account in the final text of the legislation. It hopes that the Government will be able to indicate the progress made in the adoption of the appropriate amendments to the Martial Law Act in its next report.

10. The Committee notes with interest that a Human Rights Commission had been established pursuant to Act No. 3586 of 5 December 1990 and had begun to review Act No. 1402. The Committee requests the Government to indicate whether the Commission is still in existence and, if so, its duties and powers including the review of this or any other piece of legislation, and any decisions issued.

11. The Government also reports that the new bill to amend Act No. 1402 will limit security investigations carried out for public service personnel to those who handle classified documents and who have access to high security units, and will ban any such investigations for the rest of the personnel or recruits. It will require a clear definition of what types of documents and information will jeopardize state security and persons who have been denied employment or dismissed due to the outcome of security investigations after 12 September 1980 will be recruited or reinstated, provided that they are still qualified. The Government also reports that the determination of the authorities who will carry out security investigations is envisaged to be set out in a separate regulation.

12. The Committee notes the above information and its apparent relation to the contents of the Security Investigation Regulation adopted on 8 March 1990. In this regard, the Committee refers to its comment below and requests the Government to indicate whether the new bill will amend the Security Regulation as well as Act No. 1402 and, if not, what measures are contemplated to ensure that the above specific provisions would not be rendered superfluous by virtue of the application of the more general Security Regulation discussed below.

Measures taken on the basis of security investigations

13. The Committee refers to its previous comment on the provisions of the Security Investigation Regulation of 8 March 1990, in which it noted the broad scope of the Regulation (including all personnel to be employed in ministries and other public institutions and organizations); its wide application (including ideological and subversive activities and relations with foreigners); and its broad definitions (including the terms "archives research", "security investigation" and "subversive activities"). The Committee requested the Government to indicate the measures taken to ensure that rejection or transfer in employment pursuant to the application of the Regulation is not based on political opinion or on any other ground which would constitute discrimination under the Convention.

14. The Committee notes the Government's statement that the provisions of the Fight Against Terrorism Act adopted on 12 April 1991 endow the Regulation with greater objectivity, and that all actions taken under the provisions of the Security Investigation Regulation are subject to judicial review pursuant to article 125 of the Constitution and pursuant to the Law Concerning the Procedure of Administrative Trials, No. 2577. The Committee observes that the provisions of the Fight Against Terrorism Act, particularly its definition of terrorism (section 1) and its definition of propaganda (section 8), are too broad to provide sufficient specificity or objectivity for application of the Security Regulation. (See more details on the Fight Against Terrorism Act set out below.) It must also point out that the provisions of a right of appeal would not be sufficient to meet the requirements of Article 4 of the Convention unless the measures intended to safeguard the security of the State were sufficiently defined and delimited so as not to lead to discrimination based on political opinion or any other prohibited ground. The Committee must therefore reiterate its request to the Government to indicate the measures taken or envisaged to ensure that the application of the Regulation would not constitute discrimination under the Convention. The Committee also requests the Government to indicate how many persons have been denied or have lost employment as a result of the application of the Regulation.

Fight Against Terrorism Act of 12 April 1991

15. The Committee notes with interest the provisions of the Fight Against Terrorism Act, which remove previously stipulated capital sentences, reduce and commute other sentences, decriminalize the use of the Kurdish language and repeal certain provisions in the Penal Code.

16. The Committee notes with concern, however, that the Act has introduced a very broad definition of terrorism and of propaganda and that both carry sentences of imprisonment. Section 1 defines terrorism as any kind of action conducted by one or several persons belonging to an organization (defined as two or more people with common aim) with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation, endangering the existence of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, eliminating fundamental rights and freedoms, or damaging the internal and external security of the State, public order or general health by any one method of pressure, force and violence, terrification, intimidation, oppression or threat. Section 8 provides that written and oral propaganda and assemblies, meetings and demonstrations aiming at damaging the indivisible unity of the State of the Turkish Republic with its territory and nation are forbidden, regardless of the method, intention and ideas behind it.

17. While punishment under this Act may be subject to appeal, the Committee observes that the broad definitions used would not appear to lay down sufficient criteria upon which protection against imprisonment based on political opinion or some other ground in the Convention would be ensured. The Committee requests the Government to indicate the measures taken to ensure that persons are not deprived of employment through imprisonment under this Act as a result of discrimination on any of the grounds set out in the Convention, and whether the above provisions of this Act have come under review by the Constitutional Court.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information provided in the Government's previous report and the documents annexed thereto which have now been translated.

1. Disciplinary action. Under Article 3(c) of the Convention, the Committee had requested the Government to supply information on disciplinary action or decisions giving effect to article 129, paragraph 3 of the Constitution. The Committee notes with interest the Ordinance concerning Disciplinary Boards and Discipline Supervisors, the accompanying regulations and the text of court decisions concerning the application of various disciplinary rules and regulations. The Committee would be grateful if the Government would supply a copy of the Security Organisation Discipline Rules and Regulations with its next report.

2. Promotion of equality of opportunity and treatment. The Committee notes with interest from the information provided in the Government's previous report that measures had been taken to prevent discrimination in employment and occupation on the grounds of sex. In this connection it notes the establishment of placement offices for women, the development of an action programme aimed at changing prejudices of the public, and the taking of measures to increase women's participation in vocational training and guidance, in decision-making levels and in setting up their own businesses.

The Committee requests the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment for women in employment. In particular, the Committee would be grateful if the Government would provide details on the operation of the placement offices and the implementation of the action programme and the other measures mentioned above, including the results achieved in terms of increasing women's participation in employment and occupation.

3. The Committee requests the Government to provide information on the measures taken in accordance with Article 3 of the Convention to promote the policy of equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the discussions in the Conference Committee in 1990, of the Government's report for the period ending 30 June 1990, which was received on 7 February 1991, of the attached documentation (including the Security Investigation Regulation of 8 March 1990) and the appended comments dated 20 August 1990 received from the Turkish Confederation of Employers' Associations, indicating that the application of the Convention had not posed any problems in the private sector and that the application of Martial Law Act No. 1402 was no longer an issue in the employment practices of the public service. The Committee has also examined the translated texts of the documentation annexed to the Government's previous report received in February 1990 (including the Council of State Decision of 7 December 1989 and legislation and court decisions concerning disciplinary action against public servants).

1. Position of public servants dismissed or transferred between 1980 and 1987 during the period of martial law

(i) Following its examination of the 7 December 1989 Council of State ruling, the Committee notes with satisfaction the conclusion of the ruling to the effect that:

- civil servants, other public employees and workers in public services whose employments were terminated on demand of martial law commanders, pursuant to section 2 of Act No. 1402, will have to be reinstated to their services by the institutions concerned after the state of martial law is lifted in the region where their employments were terminated on the condition that they have not lost the qualifications required at the time of their first appointment, and

- that jurisprudence is to be unified in the same direction.

The Committee further notes with interest, from the opinion of the Attorney General of the Council of State, that the decisions of Martial Law Commanders on dismissals and transfers in employment under Act No. 1402 were considered not to be in compliance with Article 4 of Convention No. 111 because the persons concerned did not have the right of appeal to administrative courts; that the authority invested in the Martial Law Commanders by Act No. 1402 was capable of giving rise to practices which are based on subjective assessments, arbitrary and not in the public interest because the reasons for using such authority were not clearly defined in the law, and no provisions were made to protect public employees; and, further, that the reason "their service is not useful" had nothing to do with the constitutional reasons necessitating the declaration of martial law.

The Committee notes the convergence of these views with those expressed in its previous comments. It earnestly hopes that the ruling will be fully applied to the benefit of all persons whose employment has been affected by decisions taken pursuant to Act No. 1402 and also that the contents of the ruling will be taken into consideration in the amendments to the Martial Law Act discussed below in point 2.

(ii) In its previous comment, the Committee requested the Government to supply statistics of reinstatement or return of dismissed or transferred public servants, and information on measures towards compensation for loss of earnings and other benefits during the period of their exclusion from employment or transfer.

The Committee notes with interest from the Government's report that, out of 9,400 public servants who had their employment affected under martial law, 4,530 had been dismissed, of which 4,097 have been reinstated to the public service and 75 have not requested reinstatement. The Government also indicates that reinstatement was denied to 358 public servants. The Committee notes from the Government's report that the legal impediments preventing reinstatement are those set out in sections 48 and 98 of the Civil Servants Act of 657 concerning requirements for appointment to service and reasons for termination. The Committee requests the Government to indicate the meaning of the requirement "not to be restricted from civic rights" contained in section 48 and also, in regard to the 358 public servants denied reinstatement, to provide information on their former positions, the specific grounds on which they were denied reinstatement, and whether they can appeal such decisions.

(iii) The Committee previously noted the 11 December 1989 circular issued by the Higher Education Board to the university deans informing them that, by virtue of the ruling of the Council of State, dismissed faculty members were entitled to reinstatement, and requesting them to give priority to such persons in filling vacancies and to apply to the Board for creation of additional posts if no vacancies existed.

The Committee notes the statement by the Workers' member of Turkey in the 1990 Conference Committee indicating that the circular had not had any effect because there were no vacancies and the persons concerned would have to wait until vacancies arose. It also notes that the specific cases of inconsistent judgements re-examined under the Council of State Decision were largely based on claims for reinstatement by university personnel.

The Committee requests the Government to indicate the measures taken to implement the Council of State Ruling, by means of the circular, in universities in order to reinstate those persons dismissed, pursuant to Act No. 1402 during martial law, in particular whether any applications for the creation of additional posts had been submitted or approved by the Board in cases where no vacancies existed to meet requests for reinstatement. The Committee further requests the Government to provide statistical information on the number of university faculty members who have been reinstated and the number whose requests for reinstatement have been denied along with the basis for that denial.

(iv) Concerning those persons transferred to other regions during martial law, the Committee notes from the Government's report that the Council of State ruling removed the obstacles preventing these persons from returning to their place of origin. The Committee again requests the Government to provide, in respect of the 4,870 persons who had been transferred, specific information and statistics on the number of persons who have returned to their previous regions and positions.

(v) With regard to the compensation for the persons whom employment was affected by decisions pursuant to Act No. 1402 during the period of martial law, the Government states in its report that all public servants who have applied for reinstatement have the right to request through the competent courts of law compensation for loss of earnings and other benefits.

The Committee notes this information. It requests the Government to provide details on the number of persons - not only those having applied for reinstatement, but all those affected by decisions under Act No. 1402 - who have filed for compensation for losses incurred during the period of their exclusion from employment or transfer and the number who have received judgements in their favour as well as information on the enforcement of such judgements.

2. Proposed amendments to Act No. 1402 respecting martial law

The Committee notes that the bill to amend Act No. 1402 is still pending in the Turkish Grand National Assembly. According to the Government's report, the Minister for Labour and Social Security has for the second time, in January 1991, dispatched a written communication to the Chairman of the Justice Committee of the Grand National Assembly calling attention to the Committee of Experts' views on the proposed bill and has also requested co-operation from the committee members in promoting the views of the Committee in the process of amending the Act. The Government previously indicated that the bill would permit periodic review of the situation of persons affected by measures taken during a period when martial law was in force and, in accordance with article 125 of the Constitution, it would be possible to apply for judicial review of decisions taken by the relevant agencies.

The Committee recalls, however, that the bill would still permit measures affecting employment to be taken against persons considered "harmful or undesirable in respect of state security", and that the possibility of judicial review under article 125 of the Constitution would be limited to determining the conformity with the law of the acts and proceedings of the administration. The Committee again points out that the provision of a right of appeal would not be sufficient to meet the requirements of Article 4 of the Convention unless the measures intended to safeguard the security of the State were sufficiently defined and delimited so as not to lead to discrimination on the basis, inter alia, of political opinion.

The Committee reiterates its firm hope that the above-mentioned considerations, which it has found to be reflected in the opinion of the Attorney General of the Council of State, will be fully taken into account in the final text of the proposed new legislative provisions relating to martial law. It requests the Government to indicate the progress made towards the appropriate amendment of the Martial Law Act.

3. Measures taken on the basis of security investigations

The Committee has taken note of the Security Investigation Regulation adopted by Resolution No. 90/245 of the Council of Ministers on 8 March 1990 replacing the former Regulation on Security Investigations which had been held to be invalid by a recent decision of the Council of State.

The Committee notes the broad scope of the Security Investigation Regulation of 1990. Under sections 1 and 2, security investigation is to be carried out not only for persons to be recruited or transferred to posts involving access to classified documents and high security areas, but also for personnel to be employed in ministries and other public institutions and organisations. Depending on the functions, institutions or categories of persons concerned, investigation may consist in "archive research" from existing files to be carried out by the National Intelligence Organisation, the General Directorate of Security or by local civil administration authorities, or may consist also in "security investigations" from existing files and on-the-spot observations to be carried out by the General Directorate of Security (section 3E and F). The personnel to be subjected to archive research, under section 5 of the Regulation, include most personnel working in the administration and public institutions and associations; magistrates and public prosecutors; university rectors, deans and faculty members; as well as employers of state enterprises and banks, and also students wishing to study abroad. Security investigations, under sections 7, 8 and 9 are required, inter alia, for magistrates and public prosecutors, inspectors, on initial appointment, promotion or change of institutions, and are to be renewed periodically or whenever necessary. According to the definitions given in section 3E and F of the Regulation, "archive research" and "security investigation" concern the determination (and appraisal) of whether or not a person is wanted by the security forces or if there is any restriction or report of the security forces or intelligence unit against that person.

The Committee notes that matters to be covered by security investigation include ideological and subversive activities and relations with foreigners (sections 3F, J and 10C and E of the Regulation); that subversive activities include, inter alia, engaging in activities or having been a member or having entertained close relations with a member of any local or foreign association or bodies engaged in activities seeking, inter alia, to destroy the national integrity of the State, or basic rights and liberties; to establish one-person or one-party rule of the State or to cause the dominance of one social class; and also behaviour contrary to Ataturk's principles and revolutions.

The Committee also notes that, pursuant to section 15 of the Regulation, an Appraisal Commission shall be set up to assess, on the basis of the findings of the security investigation and archive research, if the person is to be employed as a civil servant, or to be transferred to distance him from restricted areas. It further notes that no right to appeal the Appraisal Commission's decision is set out in the Regulation.

The Committee observes that the broad terms of the definitions given in the Regulation of "archive research" and "security investigation", as well as of subversive activities, would not appear to lay down sufficiently precise criteria upon which the decision whether or not to employ or transfer a person is to be based in order to ensure that there is no discrimination on the ground of political opinion.

The Committee wishes to draw the attention of the Government to indications given in paragraphs 135 and 136 of its 1988 General Survey on Equality in Employment and Occupation: (i) that the protection afforded by the Convention is not limited to differences of opinion within the framework of established principles or institutions, provided that no violent methods are used; and (ii) that the application of measures intended to protect the security of the State must be examined in the light of the bearing which the activities concerned may have on the actual performance of the job, tasks or occupation of the person concerned.

The Committee recalls that according to the information communicated in 1989 by the Confederation of Turkish Trade Unions (TURK-IS), measures affecting employment in the public service had also been taken and, even after termination of martial law, continued to be taken pursuant to the Regulation on security investigations to collect political and other subjective information, which was taken into account in employment decisions including new appointments, transfers and promotions.

The Committee requests the Government to indicate the extent to which security investigation reports are prepared and used in employment and other relevant decisions and to indicate the measures taken to ensure that rejection or transfer pursuant to the application of the Regulation is not based on political opinion or on any other ground which would constitute discrimination under the Convention.

The Committee requests the Government to indicate whether persons affected by decisions taken on the basis of security investigation have a right to appeal in accordance with Article 4 of the Convention.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee has taken note of the discussions in the Conference Committee in 1989 and of the Government's report for the period ending 30 June 1989. It has also given further consideration to the observation received in March 1989 from the Confederation of Turkish Trade Unions (TURK-IS) concerning the measures taken in application of Act No. 1402 respecting martial law and proposed amendments to that Act (a copy of which had been sent to the Government to enable it to present comments thereon).

The Government's report was received on 15 February 1990. The Committee will be able to examine it in detail only when translations of the documentation appended to it (including a ruling of the Council of State of December 1989 and legislation and court decisions concerning disciplinary action against public servants) have become available. However, in view of the importance attached by the Conference Committee to the adoption of measures to eliminate the previously noted divergencies between law and practice and the requirements of Convention No. 111, the Committee deems it appropriate to draw attention already at its present session to the following points:

1. Position of public servants dismissed or transferred during the period of martial law. In its previous comments the Committee had sought information concerning the reinstatement in employment of public servants who had been dismissed or transferred to other regions pursuant to decisions taken by Martial Law Commanders under Act No. 1402, during the period between 1980 and 1987, when martial law was in force throughout the country or in a number of provinces. According to information given by the Government in its report:

- on 7 December 1989 the Council of State ruled that the provision in section 2 of Act No. 1402 that "dismissed public servants shall never be employed again in the public service" applied only during the period of martial law, and that after termination of martial law those affected would be able to return to their duties unless there were other legal impediments;

- by virtue of section 40 of Act No. 2575 concerning the Council of State, the above-mentioned ruling is binding on the administration and administrative tribunals;

- on 11 December 1989 the Higher Education Board issued a circular to University Deans informing them that, by virtue of the ruling of the Council of State, dismissed faculty members were entitled to reinstatement, and requesting them to give priority to such persons in filling vacancies and to apply to the Board for creation of additional posts if no vacancies existed.

The Committee has noted this information with interest. It requests the Government to provide particulars of the measures taken with a view to reinstatement of public servants who had been dismissed, not only in universities, but also in other parts of the public service, and also to permit persons who had been transferred to other regions under martial law powers to return to their previous positions.

The Committee recalls that, according to a document dated February 1989 communicated by the Confederation of Turkish Trade Unions (TURK-IS) and stated to be based on official figures, of a total of 9,400 public servants who had been dismissed or transferred to other regions, 4,125 were still regarded as "harmful". The Committee accordingly hopes that the Government will provide precise statistical data on the number of public servants who have been reinstated or enabled to return from regions to which they were transferred.

The Committee would also appreciate information on the steps taken to recognise the rights of those concerned arising out of their previous service and on any measures enabling them to obtain compensation for loss of earnings and other benefits during the period of their exclusion from employment or transfer.

The Committee also requests the Government to indicate what other kinds of legal impediments constitute a bar to reinstatement, and the number of persons to whom reinstatement has been refused on the respective grounds.

2. Proposed amendments to Act No. 1402 respecting martial law. The Committee notes that the bill to amend Act No. 1402 is still pending in the Turkish Grand National Assembly. According to the indications given by the Government, the bill would permit periodic review of the situation of persons affected by measures taken during a period when martial law was in force and, in accordance with article 125 of the Constitution, it would be possible to apply for judicial review of decisions taken by the relevant agencies.

The Committee notes, however, that the bill would still permit measures affecting employment to be taken against persons considered "harmful or undesirable in respect of State security", and that the possibility of judicial review under article 125 of the Constitution would be limited to determining the conformity with the law of the acts and proceedings of the administration. The Committee recalls the comments concerning the scope of Article 4 of Convention No. 111 made in paragraphs 136 and 137 of its 1988 General Survey on Equality in Employment and Occupation, in which it pointed out that measures intended to safeguard the security of the State must be sufficiently well defined and delimited in order not to lead to discrimination (inter alia) on the basis of political opinion; that the application of measures intended to protect the security of the State must be examined in the light of the bearing which the activities taken into consideration might have on the performance of the job, tasks or occupation of the person concerned; and that the provision of a right of appeal would not be sufficient to meet the requirements of Article 4 of the Convention if the foregoing substantive conditions were not met.

The Committee trusts that the above-mentioned considerations will be fully taken into account in the final text of the proposed new legislative provisions relating to martial law. It requests the Government to indicate the progress made towards the adoption of these provisions.

3. Measures taken on the basis of security investigations. According to the information communicated in 1989 by the Confederation of Turkish Trade Unions (TURK-IS), measures affecting employment in the public service had also been taken and, even after termination of martial law, continued to be taken pursuant to the Regulations on security investigations to collect political and other subjective information, which was taken into account in decisions on new appointments, transfers, promotions, etc. The Committee notes from the Government's report that the Regulations on security investigations regarding key public servants to be recruited, transferred or assigned had been held to be invalid, on grounds of formal defect, in a recent decision by the Council of State, the text of which will be sent to the ILO, when published. The Committee hopes that the Government will provide, in addition to this decision, information on any new regulations which may have been adopted or may be contemplated to provide for such security investigations, and the measures taken to ensure the observance of the Convention in this respect.