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

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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)

Article 2(2)(a) of the Convention. Use of conscripts for non-military purposes. The Committee refers to its observation on this point made under Convention No. 105.

Article 2(2)(b). Work exacted as normal civic obligations of citizens. In its previous comments the Committee noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include physical or intellectual work necessitated by the requirements of the country as a civic obligation. It requested the Government to specify the types of “physical or intellectual work” which may be exacted “as a civic obligation”.

The Committee notes the Government’s indication in its report that, under article 18 of the Constitution, civic obligations include military service, obligation to pay taxes, community cooperation, census and duty to assist in public elections. The Committee requests the Government to provide information regarding the abovementioned “community cooperation”, specifying any types of physical or intellectual work which may be exacted for this purpose, including information on the selection of participants, duration of the services and consultation with the local community or its representatives regarding the need for such services. Please also provide information regarding the possibility of refusal by the persons concerned to perform such services, including information on any sanctions applied in case of refusal.

Article 2(2)(c). Work of prisoners for private employers. In its previous comments, the Committee noted that there appeared to be no provisions in the Act on the Execution of Sentences and Security Measures (No. 5275 of December 2004) or in the corresponding regulations under which the employment of prisoners at private sector worksites is subject to their formal written consent.

The Committee recalls, referring also to paragraphs 59–60 and 114–117 of its 2007 General Survey on the eradication of forced labour, that in cases where work is performed for private enterprises, the worker’s consent needs to be authenticated, so as to ensure that it is free and informed, and the most reliable indicator of the voluntariness of labour and of freely given consent in such circumstances is work that is performed under conditions which approximate a free labour relationship. This, in turn, entails consideration of such factors as the wage levels, social security benefits, and occupational safety and health provisions of the employed prisoners and of how closely such conditions resemble those enjoyed by workers in the free labour market.

Referring to its observation under the Convention, the Committee notes the adoption of the Regulation on the Administration and Bidding of Penitentiaries and Work Centres of Detention Institutions in 2005 and the Regulation on Administration of Penitentiaries and Execution of Sentences in 2006, which govern the employment of prisoners.

While noting that, under the above regulations, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the informed, formal consent of prisoners to work for private enterprises does not appear to be asked for. The Committee asks the Government to indicate, in its next report, how the free and informed consent of prisoners to work for private companies is guaranteed free from the menace of any penalty, including the loss of rights or privileges.

Sentences of community work. The Committee notes the information provided by the Government in reply to its earlier comments concerning the application of alternative sanctions of community work. It notes, in particular, the definition of “community service” given by the Constitutional Court, as well as the Government's detailed explanations in its report concerning the new Regulation for Probation and Help Services and Protection Boards, adopted in 2007, which provides for the methods and principles of application of the sentence of community work (sections 46–61).

Article 2(2)(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee had noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include services required from citizens during a state of emergency, which may be declared, under article 119 of the Constitution, in the event, among other things, of a “serious economic crisis”. It had also noted that under the State of Emergency Act (No. 2935 of 1983), the Council of Ministers may issue decrees to determine obligations and measures to be taken in the event of serious economic crises, which may concern, inter alia, labour issues. The Committee has therefore requested the Government to limit the above provisions to a strict minimum allowed by the Convention, so that recourse to compulsory labour under emergency situations does not develop into mobilization for purposes of economic development.

The Committee notes the indication in the Government’s report that Turkey experienced economic crises in the past without, however, having any records of a state of emergency being declared as a consequence of it. It also notes the Government’s statement that no complaints regarding forced labour have been brought to the attention of the authorities either in periods of state of emergency or during economic crises.

The Committee further notes the Government’s information that the state of emergency referred to in the Constitution relates to exceptional conditions obstructing life in the country and that, even under these conditions, the reference to “all kinds of measures regarding working” does not allow for the exaction of forced labour, once article 18 of the Constitution explicitly prohibits forced labour. While noting these indications, the Committee recalls that the notion of “serious economic crises” does not seem to satisfy the criteria for the exception of “emergency situations” allowed under Article 2(2)(d) of the Convention and, therefore, requests the Government, once again, to take the necessary measures in order to limit the above provisions concerning the exaction of compulsory work or service in cases of emergency to a strict minimum allowed by the Convention. The Committee requests the Government to provide, in its next report, information on the action taken to this end.

Article 2(2)(e). Minor communal services. The Committee previously noted that sections 12 and 13 of the Village Affairs Act No. 442, of 18 March 1924 provided for “mandatory works for villagers”. The Committee further noted the Government’s indication in its 2005 report that sections 12 and 13 of the Village Affairs Act were no longer applied in practice and that services such as building and repairing village roads were organized at the central or provincial government levels. It also noted the Government’s information that studies concerning the amendment of the Village Affairs Act were still being carried out and that the requirements of the Convention were to be taken into consideration in this reform process.

The Committee previously noted the Government’s indication in its 2007 report that the village services that did not qualify as “communal services” under the Village Affairs Act were, in fact, governed by the general management of village services (Law No. 3202 of 9 May 1985), which had been abolished by Law No. 5286 of 13 January 2005. The Committee also noted the Government’s statement that some services continued to be provided during a transitional period. Noting that the Government’s report contains no new information on this issue, the Committee requests the Government to provide, in its next report, updated information concerning communal services during the mentioned transitional period. Please also provide information as regards the amendment of the Village Affairs Act.

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

The Committee notes with satisfaction that the 1998 “Regulations on the administration of penitentiaries and work centres of detention centres and administration, accounting and bidding of work centres” and the 1967 “Regulations pertaining to the administration of penitentiaries and detention centres and to the execution of sentences”, under which prison labour was compulsory for both convicted and remand prisoners, were repealed, respectively, by the Regulation on the Administration and Bidding of Penitentiaries and Work Centres of Detention Institutions, adopted in December 2005 and the Regulation on Administration of Penitentiaries and Execution of Sentences, adopted in 2006.

The Committee had previously noted the adoption of section 114 of the Act on the Execution of Sentences and Security Measures (No. 5275 of December 2004), under which prisoners awaiting trial or detained without trial may not be compelled to work.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted a communication received from the International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation (ITUC)), which pointed out the gravity and extent of the practice of trafficking in persons in Turkey. The Committee had also noted the information provided by the Government on measures adopted to combat this phenomenon. The Committee requested the Government to provide further information on measures taken to strengthen action against trafficking in persons, particularly with regard to prevention and protection measures, supplying information on intergovernmental cooperation, police training and other efforts to improve law enforcement, as well as on convictions and sentences imposed.

The Committee notes the comments on the application of the Convention by Turkey, made by the Turkish Confederation of Employers’ Associations (TÏSK), which concerned, inter alia, the measures taken by the Government to combat trafficking in persons.

The Committee notes the Government’s indications in its report concerning the amendments made to certain legislative acts, such as the Work Permit for Foreign Workers Act (No. 4817 of 2003), the Citizenship Law and the Highway Transportation Law, which introduced certain measures aiming at the prevention of trafficking as an organized crime.

The Committee notes the information in the Government’s report concerning other measures it has taken, which include, inter alia, the following:

–      training and awareness-raising activities for law enforcement officers, organized in collaboration with the International Organization for Migration (IOM);

–      implementation, in collaboration with the European Union, of a project on “Strengthening the institutional capacity with a view to combating trafficking in human beings”, that resulted in an action plan determining the activities and targets for the beneficiary institutions and organizations in the short-, medium- and long-term perspective; and which is waiting to be signed for approval;

–      bilateral agreements to combat human trafficking in cooperation with source countries such as Belarus, Georgia, Azerbaijan, Ukraine, Republic of Moldova and Kyrgyzstan;

–      bilateral “cooperation protocols” signed by the General Directorate of Security and national NGOs, aiming at improving the capacity to identify and provide assistance to potential sex trafficking victims, and establishing “victims’ shelter houses” in various municipalities;

–      the launching in 2009 of a project, within the framework of financial cooperation with the Swedish International Development Agency (SIDA), with a view to building the capacity of local NGOs at the provincial level to improve victims’ identification, and contributing to the implementation of a national action plan.

The Committee further notes the information provided by the Government in its report concerning the amendment of section 80 of the Turkish Penal Code in 2006 so as to include forced prostitution in the human trafficking definition. It also notes the information in the Government’s report on recent law enforcement efforts, including the references to judicial cases involving the arrest, prosecution and punishment of perpetrators. The Committee hopes that the Government will continue to provide information on progress on the above measures, as well as information on any other measures taken or contemplated to prevent, suppress and punish trafficking in persons. In particular, please continue to provide information concerning the application in practice of sections 80, 117(2) and 227(3) of the Penal Code, including information on convictions, and supplying sample copies of the relevant court decisions.

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

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:

Article 2, paragraph 2(a), of the Convention. Use of conscripts for non-military purposes. The Committee refers to its observation on this point made under Convention No. 105.

Article 2, paragraph 2(b). Work exacted as normal civic obligations of citizens. The Committee previously noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include physical or intellectual work necessitated by the requirements of the country as a civic obligation, and it sought clarification of this provision. In the absence of a reply on this point, the Committee requests the Government to indicate examples of specific types of “physical or intellectual work” which may be exacted “as a civic obligation” under article 18 of the Constitution.

Article 2, paragraph 2(c). Work of prisoners detained without conviction. In its previous comments, the Committee noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include work required of an individual while serving a court sentence or under detention. It also noted that, under section 198 of the 1967 Regulations pertaining to the administration of penitentiaries and detention centres and to the execution of sentences, as amended in 1987 (hereinafter referred to as the “APES Regulations”), prison labour shall be compulsory for convicts and remand prisoners. The Committee recalled that compulsory prison labour is excluded from the scope of the Convention only if such labour is imposed as a consequence of a conviction in a court of law.

The Committee notes the adoption of section 114 of the Act on the Execution of Sentences and Security Measures (No. 5275 of December 2004) (“ESSMA”), under which prisoners awaiting trial or detained without trial may not be compelled to work. The Committee notes, however, that section 198 of the APES regulations, referred to above, and section 20 of the 1998 Regulations on the administration of penitentiaries and work centres of detention centres and administration, accounting and bidding of work centres (hereinafter referred to as the “APWC Regulations”), under which prison labour is compulsory for both convicted and remand prisoners, conflict with section 114 of the ESSMA. The Committee asks the Government to indicate the measures taken or envisaged to amend these regulations in order to bring them into conformity with the Convention on this point.

Articles 2 (paragraph 1), and 2 (paragraph 2)(c). Work of prisoners for private employers. The Committee has previously noted that, pursuant to sections 198 and 200 of the APES Regulations, certain categories of prisoners (such as, for example, those incarcerated in low-security and medium-security prisons or convicts in maximum-security penitentiaries who have no more than two years to serve before being released, etc.) are employed outside prison institutions at worksites in both the public and private sectors. The Committee notes that this policy is also reflected in sections 6 and 7 of the 1983 Regulations pertaining to the employment of convicts detained in penal institutions at places of employment outside those prisons (hereinafter referred to as the “ECOP Regulations”), which are referred to in section 198 of the APES Regulations. The Committee further notes that sections 198 and 200 of the APES Regulations are also closely replicated in sections 20 and 21 of the APWC Regulations.

The Committee recalls that, under Article 2(2)(c) of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: “... that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations”. The Committee refers to its 2007 General Survey on the eradication of forced labour, in which it has explained that both conditions are necessary and each must be observed independently of the other (paragraph 105). With regard to the second condition, the Committee has observed that the terms “hired to” and “placed at the disposal of” (a private employer) both imply that the prisoner has not given his or her agreement to the arrangement (paragraph 56). Prisoners whose private sector employment is governed by a triangular relationship, involving a contract concluded directly between the public authority and a private company, the subject of which is the prisoners’ labour, may be considered as being “hired out” to the private company, a situation that corresponds to what is referred to in Article 2(2)(c), as being incompatible with the Convention (paragraph 108). It is difficult to consider the situation of prisoners performing work for private companies under such circumstances as falling within the exclusion in Article 2(2)(c) of the Convention (paragraph 113).

The Committee notes that the APES, APWC and ECOP Regulations provide that convicted prisoners shall be employed by both public and private sector entities outside the prison, that such work shall be carried out on a group basis and not by individual prisoners, and that it shall be performed “in accordance with the provisions of a protocol drawn up on behalf of the institution, between the workshop representative or, where there is no workshop, the local public prosecutor and the employer and approved by the Ministry of Justice” (APES Regulations, section 200; APWC Regulations, section 21; ECOP Regulations, section 6). The Committee considers that under these conditions prisoners employed outside prison institutions by private sector employers are “hired to” private sector employers, and that therefore the prison regulations do not fall within the exclusion of Article 2(2)(c) of the Convention.

It remains to be considered whether the prisoners concerned offer themselves voluntarily to perform work in the private sector, without being subjected to pressure or the menace of any penalty, such that their work may be considered as falling outside the overall definition of forced labour under Article 2(1) of the Convention. The Committee, referring once again to its General Survey of 2007, has considered that in situations involving prisoners and their captive circumstances, it is necessary to obtain prisoners’ formal written consent in cases where work is performed for private enterprises (paragraph 115). That consent, however, needs to be authenticated, so as to ensure that it is free and informed, and the most reliable indicator of the voluntariness of labour and of freely given consent in such circumstances is work that is performed under conditions which approximate a free labour relationship (paragraph 116). This, in turn, entails consideration of such factors as the wage levels, social security benefits, and occupational safety and health provisions of the employed prisoners and of how closely such conditions resemble analogous conditions enjoyed by workers in the free labour market (paragraph 116).

The Committee notes that there appears to be no provision in the ESSMA or in the corresponding regulations under which the employment of prisoners at private sector worksites is subject to their formal written consent. With regard to the question of how closely the conditions of work of prisoners in the private sector approximate those of workers in a free labour relationship, which it considers to be the most reliable indicator of voluntariness and free consent, the Committee notes the following provisions:

–      the working conditions of prisoners employed outside prison institutions are governed by regulation (ESSMA, section 30(5));

–      convicted prisoners (with certain exceptions) may be employed outside prison institutions in the public and private sectors, in groups, and under the supervision and protection of members of the prison personnel; individual work shall not be allowed (APES Regulations, sections 199, 200);

–      prisoners may be employed in places of employment in both the public and private sectors “in compliance with the Labour Act” (APES Regulations, section 200; APWC Regulations, section 21);

–      work carried out outside the prison institution shall be carried out “in accordance with the provisions of a protocol drawn up on behalf of the institution, between the workshop representative or, where there is no workshop, the local public prosecutor and the employer and approved by the Ministry of Justice” (ECOP Regulations, section 6; APES Regulations, section 200; APWC Regulations, section 21);

–      the manner and conditions of employment of prisoners at places of employment outside the prison shall be defined in the protocol to be drawn up. The model protocol developed by the Ministry of Justice shall serve as the basis for drafting that protocol (ECOP Regulations, section 10);

–      the manner in which employed prisoners enjoy social rights and benefits shall be determined by protocol (ECOP Regulations, section 21);

–      safety at work must be ensured by the employer in accordance with the Labour Act, No. 1475 (ECOP Regulations, section 22);

–      the amount of the wages to be paid “shall be laid down in the protocol to be drawn up. However, the wages to be paid shall not be less than the minimum wage in effect on the date on which they perform the work” (ECOP Regulations, section 9);

–      working time shall be governed by the internal regulations of the prison institution, consistent with applicable provisions of the Labour Act, No. 1475 (APES Regulations, section 201; APWC Regulations, section 24);

–      prisoners may be required to work in excess of normal working hours prescribed by the Labour Act, where there is a need to increase productivity, to improve the quality of production, or to serve the general needs of the national economy (APWC Regulations, section 24).

The Committee asks that in its next report the Government supply detailed information to clarify the following matters:

–      indicate whether, as a matter of law, policy or practice, prison authorities seek the formal written consent of prisoners when they are employed in the private sector outside the prison institutions; and if so, to supply copies of the texts of relevant provisions, policy directives, or other information to substantiate such a practice;

–      specify the provisions of the Labour Act, as referred to in section 200 of the APES Regulations and section 21 of the APWC Regulations, which govern the conditions of employment of prisoners in the private sector outside prison institutions;

–      indicate whether and to what extent section 201 of the APES Regulations and section 24 of the APWC Regulations on working time apply to the private sector employment of prisoners outside the prison institutions; and

–      indicate the extent to which conditions of employment in the private sector that are determined by protocol (such as social rights and benefits), as referred to in section 6 of the ECOP Regulations, section 200 of the APES Regulations, and section 21 of the APWC Regulations, or by rules or regulations of the Ministry of Justice (for example, daily wages and overtime bonuses), approximate the conditions of employment of workers in the free labour market.

The Committee asks the Government in its next report to supply a copy of the model protocol drawn up by the Ministry of Justice and copies of actual protocols that have been drawn up on the basis of the model protocol to govern the outside employment of prisoners by employers in the private sector, as well as copies of any applicable internal rules or regulations of the Ministry of Justice.

In addition, the Committee asks the Government to supply information about any recent amendments to these regulations as they relate to the points raised above, and to supply copies of the texts of any such amendments. The Committee notes the Government’s reference in its 2007 report to Decree No. 2006/10218 on the administration of houses of detention and the execution of penal and security provisions, and its statement that certain provisions of this Decree, particularly sections 96–100, concern the labour of convicted persons and their salaries and social rights. The Committee defers its consideration of this point pending receipt of a translation of the relevant texts.

Sentences of community work

The Committee notes that section 50(f) of the Penal Code, No. 5237 of 2005, provides that for certain convicted offenders sentences of imprisonment may, with their consent, be substituted by sentences involving terms of work in the community having a public benefit, and further that, under section 105 of the ESSMA, the second half of short prison sentences for certain prisoners may, with their consent, be converted to community service work having a public benefit. The Committee notes that these provisions, as well as section 51 of the Penal Code, appear to provide that such alternative sentences of public interest work may include work placements carried out for, and under the supervision of, private enterprises or establishments engaged in a public service.

The Committee recalls paragraphs 126 to 128 of its 2007 General Survey on the eradication of forced labour, in which it considered that where community work may be performed for private institutions such as charitable bodies or other private entities, the Committee seeks assurances, first, that the person sentenced formally consents to doing such work, and second, that the work genuinely serves the public interest and is not carried out for economic gain or as a profit-making venture. Elements that are relevant to such a determination may include the circumstances in which the work is structured and monitored (paragraph 126), the practical arrangements for the work; judicial conditions under which the sentence is carried out; and the criteria adopted by the courts to allow associations to provide such work (paragraph 128). The Committee asks that in its next report the Government supply information clarifying whether sections 50(f) and 51 of the Penal Code and section 105 of the ESSMA, allow for work placements carried out for, and under the supervision of, private enterprises or establishments, and if so, information about the application of these provisions in practice, including information describing actual work assignments for private entities that have been made. Further, the Government is asked to provide information on these elements to substantiate that work for private entities assigned under these provisions are genuinely carried out for a public interest and not for private economic gain of the employer. In addition, the Committee asks the Government to provide a copy of an official list of names of authorized associations or institutions for work assignments under these provisions, noting the reference to such a list in section 105 of the ESSMA, and also to provide examples of the types of work performed by prisoners assigned, with their consent, to private enterprises engaged in public services.

Article 2, paragraph 2(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include services required from citizens during a state of emergency, which may be declared, under article 119 of the Constitution, in the event of natural disaster, dangerous epidemic diseases or a “serious economic crisis”. It also noted that, under section 10 of the State of Emergency Act (No. 2935 of 25 October 1983), the Council of Ministers may issue decrees to determine obligations and measures to be taken in the event of serious economic crisis, which may concern, inter alia, labour issues. The Committee recalled that the concept of emergency – as indicated by the enumeration of examples in Article 2(2)(d) of the Convention – involves a sudden, unforeseen happening calling for instant countermeasures, and it considered the notion of a “serious economic crisis”, referred to in the above provisions, does not seem to satisfy these criteria.

The Committee notes the Government’s indication in its 2005 report that the Turkish Constitution was amended in 2005 by section 7 of Law No. 5170, which provides that conflicts in the law on a given issue should be resolved in favour of provisions of international treaties which are to take precedence over inconsistent national laws. While noting this indication, the Committee reiterates its hope that the necessary measures will be taken in order to limit the above provisions concerning the exaction of compulsory work or service in cases of emergency to a strict minimum allowed by the Convention, so that recourse to compulsory call-up of labour under emergency powers does not develop into mobilization of labour for purposes of economic development, and that the legislation will be brought into conformity with the Convention and the indicated practice. The Committee requests the Government to provide, in its next report, information on the action taken to this end.

Article 2, paragraph 2(e). Minor communal services. The Committee previously noted the provisions of the Village Affairs Act No. 442, of 18 March 1924, according to which village affairs are divided into two categories: matters of a mandatory nature and matters subject to the request of the villagers; failure to perform mandatory action shall be penalized (section 12). The Committee recalled, referring to paragraph 37 of its General Survey of 1979 on the abolition of forced labour, that the exception of “minor communal services” allowed under Article 2(2)(e) of the Convention must satisfy certain criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which must be abolished (such as forced labour for general or local public works). The Committee observed that certain kinds of work listed under section 13 of the abovementioned Act as “mandatory for villagers” (such as, for example, building and repairing roads leading from the village to the government centre or neighbouring villages, or building bridges over such roads, etc.) do not seem to meet the criteria of “minor services” or “communal services”. Moreover, there is no provision for consultation in regard to the need of works or services exacted under section 13.

The Committee noted the Government’s indications in the report that studies were still being carried out in order to bring the national legislation into conformity with the ILO Conventions and that, in line with the provisions of the Emergency Action Plan launched by the Government in January 2003, the necessary work was under way primarily in the field of democratization and law reform and in the domain of fundamental rights and liberties.

The Committee notes that in its 2005 report the Government indicated that sections 12 and 13 of the Village Affairs Act are no longer applied in practice, and that services such as building and repairing village roads are now organized at the central or provincial government levels. The Government indicated once again that studies concerning amendment of the Village Affairs Act were still being carried out and that the requirements of the Convention were to be taken into consideration in this reform process. The Committee reiterates its hope that the necessary measures will be taken with a view to amending the above provisions of the Village Affairs Act in order to bring it into conformity with the Convention and the indicated practice, and that the Government will soon be able to report on the action taken to this end. The Committee notes the Government’s indication in its 2007 report that village services that do not qualify as “minor services” or “communal services” under the Village Affairs Act are, in fact, not governed by that Act but fall instead under the jurisdiction of the General Management of village services by virtue of Law No. 3202 of 9 May 1985; and that the General Management of village services was itself abolished by Law No. 5286 on 13 January 2005 but has continued to provide services during a transitional period. The Government has supplied a table of specific services and activities carried out under the General Management during the year 2006. The Committee defers its examination of this point pending the receipt of translations of the relevant texts.

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

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

Articles 1 (paragraph 1), 2 (paragraph 1), and 25 of the Convention. Trafficking in persons for the purpose of sexual exploitation. The Committee previously noted a communication received in December 2003 from the International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation). In that communication, the ICFTU focused its concern on the trafficking of women and children. It observed that:

–      Turkey is both a transit and a destination country for trafficked persons;

–      most women and girls whose destination is Turkey come from the Russian Federation, Republic of Moldova, Romania, Georgia, Ukraine, Armenia, Azerbaijan and Uzbekistan;

–      Turkey provides transit mainly for women from Central Asia, Africa, the Middle East and former Yugoslavia to other countries in Europe; and

–      most victims of trafficking find themselves forced into prostitution and some into debt bondage.

The Committee notes, under the new Penal Code (Act No. 5237 of 2004), that:

–      trafficking in persons for the purpose of subjecting them to forced labour or to slave-like conditions is punishable with a sentence of imprisonment of eight to 12 years (section 80);

–      the employment of homeless, helpless or dependent persons without payment or for substandard wages or forcibly subjecting them to inhumane working and living conditions is punishable by a term of imprisonment of six months to three years (section 117(2)); and

–      trafficking for the purpose of prostitution is punishable by a term of two to four years’ imprisonment (section 227(3)).

The Committee asks the Government in its next report to supply information concerning the application and enforcement of sections 80, 117(2), and 227(3) of the Penal Code, including statistical data and other information about investigations and prosecutions, as well as convictions and sentencing outcomes in cases of convictions.

The Committee notes the reference by the Government to other measures it has taken, including among other things:

–      training and awareness-raising seminars for law enforcement officers, organized in collaboration with the International Organization for Migration (IOM);

–      implementation, within the framework of financial cooperation between Turkey and the European Union and under the coordination of the General Directorate of Security, a “Project for enhancement of the institutional capacity with a view to combating trafficking in human beings”;

–      the conclusion on 24 September 2004 of a bilateral “Memorandum of Understanding for cooperation in the struggle against human trafficking and illegal migration” with the Republic of Belarus as a source country; and

–      the launching of a national emergency hotline and call service for use by victims of trafficking, as well as initiatives to establish women’s trafficking shelters in Ankara and other cities.

The Committee asks the Government to supply information in its next report on the progress of these measures and information on any more recent measures taken or contemplated to combat trafficking in persons for purposes of sexual exploitation or other forms of forced labour, including updated information on police training and other efforts to improve law enforcement capacity in relation to trafficking; as well as on efforts to strengthen intergovernmental cooperation on trafficking cases, particularly with source countries.

The Committee notes the indication of the Government that application of the regulations implementing the Work Permit for Foreign Workers Act (No. 4817 of 2003), particularly sections 7, 12, and 22 of the Act, has entailed the imposition of new obligations that are aimed at combating trafficking in persons. The Government indicated that copies of these provisions were attached to the report in an “Annex 2”; however, the annex does not appear to have been included, and the Committee asks the Government to supply a copy with its next report.

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

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

1. The Committee has noted the Government’s reply to its earlier comments, as well as observations made by the Confederation of Progressive Trade Unions of Turkey (DISK) and by the Turkish Confederation of Employer Associations (TISK) annexed to the Government’s report. The Committee notes, in particular, the Government’s explanation concerning the right of career military service personnel to leave their service.

2. Article 2(2)(a) of the Convention. Use of conscripts for non-military purposes. The Committee has noted the Government’s reply to its earlier comments in its 2005 reports on the application of Convention No. 29 and Convention No. 105 and refers to its observation on this point made under Convention No. 105.

3. Article 2(2)(b). Work exacted as normal civic obligations of citizens. The Committee previously noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include physical or intellectual work necessitated by the requirements of the country as a civic obligation, and it sought clarification of this provision. In the absence of a reply on this point, the Committee requests the Government to indicate examples of specific types of “physical or intellectual work” which may be exacted “as a civic obligation” under article 18 of the Constitution.

4. Article 2(2)(c). Work of prisoners detained without conviction. In its previous comments, the Committee noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include work required of an individual while serving a court sentence or under detention. It also noted that, under section 198 of the 1967 Regulations pertaining to the administration of penitentiaries and detention centres and to the execution of sentences, as amended in 1987 (hereinafter referred to as the “APES Regulations”), prison labour shall be compulsory for convicts and remand prisoners. The Committee recalled that compulsory prison labour is excluded from the scope of the Convention only if such labour is imposed as a consequence of a conviction in a court of law.

5. The Committee notes the adoption of section 114 of the Act on the Execution of Sentences and Security Measures (No. 5275 of December 2004) (“ESSMA”), under which prisoners awaiting trial or detained without trial may not be compelled to work. The Committee notes, however, that section 198 of the APES regulations, referred to above, and section 20 of the 1998 Regulations on the administration of penitentiaries and work centres of detention centres and administration, accounting and bidding of work centres (hereinafter referred to as the “APWC Regulations”), under which prison labour is compulsory for both convicted and remand prisoners, conflict with section 114 of the ESSMA. The Committee asks the Government to indicate the measures taken or envisaged to amend these regulations in order to bring them into conformity with the Convention on this point.

6. Articles 2(1) and 2(2)(c). Work of prisoners for private employers. The Committee has previously noted that, pursuant to sections 198 and 200 of the APES Regulations, certain categories of prisoners (such as, for example, those incarcerated in low-security and medium-security prisons or convicts in maximum-security penitentiaries who have no more than two years to serve before being released, etc.) are employed outside prison institutions at worksites in both the public and private sectors. The Committee notes that this policy is also reflected in sections 6 and 7 of the 1983 Regulations pertaining to the employment of convicts detained in penal institutions at places of employment outside those prisons (hereinafter referred to as the “ECOP Regulations”), which are referred to in section 198 of the APES Regulations. The Committee further notes that sections 198 and 200 of the APES Regulations are also closely replicated in sections 20 and 21 of the APWC Regulations.

7. The Committee recalls that, under Article 2(2)(c) of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: “... that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations”. The Committee refers to its 2007 General Survey on the eradication of forced labour, in which it has explained that both conditions are necessary and each must be observed independently of the other (paragraph 105). With regard to the second condition, the Committee has observed that the terms “hired to” and “placed at the disposal of” (a private employer) both imply that the prisoner has not given his or her agreement to the arrangement (paragraph 56). Prisoners whose private sector employment is governed by a triangular relationship, involving a contract concluded directly between the public authority and a private company, the subject of which is the prisoners’ labour, may be considered as being “hired out” to the private company, a situation that corresponds to what is referred to in Article 2(2)(c), as being incompatible with the Convention (paragraph 108). It is difficult to consider the situation of prisoners performing work for private companies under such circumstances as falling within the exclusion in Article 2(2)(c) of the Convention (paragraph 113).

8. The Committee notes that the APES, APWC and ECOP Regulations provide that convicted prisoners shall be employed by both public and private sector entities outside the prison, that such work shall be carried out on a group basis and not by individual prisoners, and that it shall be performed “in accordance with the provisions of a protocol drawn up on behalf of the institution, between the workshop representative or, where there is no workshop, the local public prosecutor and the employer and approved by the Ministry of Justice” (APES Regulations, section 200; APWC Regulations, section 21; ECOP Regulations, section 6). The Committee considers that under these conditions prisoners employed outside prison institutions by private sector employers are “hired to” private sector employers, and that therefore the prison regulations do not fall within the exclusion of Article 2(2)(c) of the Convention.

9. It remains to be considered whether the prisoners concerned offer themselves voluntarily to perform work in the private sector, without being subjected to pressure or the menace of any penalty, such that their work may be considered as falling outside the overall definition of forced labour under Article 2(1) of the Convention. The Committee, referring once again to its General Survey of 2007, has considered that in situations involving prisoners and their captive circumstances, it is necessary to obtain prisoners’ formal written consent in cases where work is performed for private enterprises (paragraph 115). That consent, however, needs to be authenticated, so as to ensure that it is free and informed, and the most reliable indicator of the voluntariness of labour and of freely given consent in such circumstances is work that is performed under conditions which approximate a free labour relationship (paragraph 116). This, in turn, entails consideration of such factors as the wage levels, social security benefits, and occupational safety and health provisions of the employed prisoners and of how closely such conditions resemble analogous conditions enjoyed by workers in the free labour market (paragraph 116).

10. The Committee notes that there appears to be no provision in the ESSMA or in the corresponding regulations under which the employment of prisoners at private sector worksites is subject to their formal written consent. With regard to the question of how closely the conditions of work of prisoners in the private sector approximate those of workers in a free labour relationship, which it considers to be the most reliable indicator of voluntariness and free consent, the Committee notes the following provisions:

–           the working conditions of prisoners employed outside prison institutions are governed by regulation (ESSMA, section 30(5));

–      convicted prisoners (with certain exceptions) may be employed outside prison institutions in the public and private sectors, in groups, and under the supervision and protection of members of the prison personnel; individual work shall not be allowed (APES Regulations, sections 199, 200);

–      prisoners may be employed in places of employment in both the public and private sectors “in compliance with the Labour Act” (APES Regulations, section 200; APWC Regulations, section 21);

–      work carried out outside the prison institution shall be carried out “in accordance with the provisions of a protocol drawn up on behalf of the institution, between the workshop representative or, where there is no workshop, the local public prosecutor and the employer and approved by the Ministry of Justice” (ECOP Regulations, section 6; APES Regulations, section 200; APWC Regulations, section 21);

–      the manner and conditions of employment of prisoners at places of employment outside the prison shall be defined in the protocol to be drawn up. The model protocol developed by the Ministry of Justice shall serve as the basis for drafting that protocol (ECOP Regulations, section 10);

–      the manner in which employed prisoners enjoy social rights and benefits shall be determined by protocol (ECOP Regulations, section 21);

–      safety at work must be ensured by the employer in accordance with the Labour Act, No. 1475 (ECOP Regulations, section 22);

–      the amount of the wages to be paid “shall be laid down in the protocol to be drawn up. However, the wages to be paid shall not be less than the minimum wage in effect on the date on which they perform the work” (ECOP Regulations, section 9);

–      working time shall be governed by the internal regulations of the prison institution, consistent with applicable provisions of the Labour Act, No. 1475 (APES Regulations, section 201; APWC Regulations, section 24);

–      prisoners may be required to work in excess of normal working hours prescribed by the Labour Act, where there is a need to increase productivity, to improve the quality of production, or to serve the general needs of the national economy (APWC Regulations, section 24).

11. The Committee asks that in its next report the Government supply detailed information to clarify the following matters:

–      indicate whether, as a matter of law, policy or practice, prison authorities seek the formal written consent of prisoners when they are employed in the private sector outside the prison institutions; and if so, to supply copies of the texts of relevant provisions, policy directives, or other information to substantiate such a practice;

–      specify the provisions of the Labour Act, as referred to in section 200 of the APES Regulations and section 21 of the APWC Regulations, which govern the conditions of employment of prisoners in the private sector outside prison institutions;

–      indicate whether and to what extent section 201 of the APES Regulations and section 24 of the APWC Regulations on working time apply to the private sector employment of prisoners outside the prison institutions; and

–      indicate the extent to which conditions of employment in the private sector that are determined by protocol (such as social rights and benefits), as referred to in section 6 of the ECOP Regulations, section 200 of the APES Regulations, and section 21 of the APWC Regulations, or by rules or regulations of the Ministry of Justice (for example, daily wages and overtime bonuses), approximate the conditions of employment of workers in the free labour market.

The Committee asks the Government in its next report to supply a copy of the model protocol drawn up by the Ministry of Justice and copies of actual protocols that have been drawn up on the basis of the model protocol to govern the outside employment of prisoners by employers in the private sector, as well as copies of any applicable internal rules or regulations of the Ministry of Justice.

In addition, the Committee asks the Government to supply information about any recent amendments to these regulations as they relate to the points raised above, and to supply copies of the texts of any such amendments. The Committee notes the Government’s reference in its 2007 report to Decree No. 2006/10218 on the administration of houses of detention and the execution of penal and security provisions, and its statement that certain provisions of this Decree, particularly sections 96–100, concern the labour of convicted persons and their salaries and social rights. The Committee defers its consideration of this point pending receipt of a translation of the relevant texts.

Sentences of community work

12. The Committee notes that section 50(f) of the Penal Code, No. 5237 of 2005, provides that for certain convicted offenders sentences of imprisonment may, with their consent, be substituted by sentences involving terms of work in the community having a public benefit, and further that, under section 105 of the ESSMA, the second half of short prison sentences for certain prisoners may, with their consent, be converted to community service work having a public benefit. The Committee notes that these provisions, as well as section 51 of the Penal Code, appear to provide that such alternative sentences of public interest work may include work placements carried out for, and under the supervision of, private enterprises or establishments engaged in a public service.

13. The Committee recalls paragraphs 126 to 128 of its 2007 General Survey on the eradication of forced labour, in which it considered that where community work may be performed for private institutions such as charitable bodies or other private entities, the Committee seeks assurances, first, that the person sentenced formally consents to doing such work, and second, that the work genuinely serves the public interest and is not carried out for economic gain or as a profit-making venture. Elements that are relevant to such a determination may include the circumstances in which the work is structured and monitored (paragraph 126), the practical arrangements for the work; judicial conditions under which the sentence is carried out; and the criteria adopted by the courts to allow associations to provide such work (paragraph 128). The Committee asks that in its next report the Government supply information clarifying whether sections 50(f) and 51 of the Penal Code and section 105 of the ESSMA, allow for work placements carried out for, and under the supervision of, private enterprises or establishments, and if so, information about the application of these provisions in practice, including information describing actual work assignments for private entities that have been made. Further, the Government is asked to provide information on these elements to substantiate that work for private entities assigned under these provisions are genuinely carried out for a public interest and not for private economic gain of the employer. In addition, the Committee asks the Government to provide a copy of an official list of names of authorized associations or institutions for work assignments under these provisions, noting the reference to such a list in section 105 of the ESSMA, and also to provide examples of the types of work performed by prisoners assigned, with their consent, to private enterprises engaged in public services.

14. Article 2(2)(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee noted that, under article 18 of the Constitution of Turkey, the term “forced labour” does not include services required from citizens during a state of emergency, which may be declared, under article 119 of the Constitution, in the event of natural disaster, dangerous epidemic diseases or a “serious economic crisis”. It also noted that, under section 10 of the State of Emergency Act (No. 2935 of 25 October 1983), the Council of Ministers may issue decrees to determine obligations and measures to be taken in the event of serious economic crisis, which may concern, inter alia, labour issues. The Committee recalled that the concept of emergency – as indicated by the enumeration of examples in Article 2(2)(d) of the Convention – involves a sudden, unforeseen happening calling for instant countermeasures, and it considered the notion of a “serious economic crisis”, referred to in the above provisions, does not seem to satisfy these criteria.

15. The Committee notes the Government’s indication in its 2005 report that the Turkish Constitution was amended in 2005 by section 7 of Law No. 5170, which provides that conflicts in the law on a given issue should be resolved in favour of provisions of international treaties which are to take precedence over inconsistent national laws. While noting this indication, the Committee reiterates its hope that the necessary measures will be taken in order to limit the above provisions concerning the exaction of compulsory work or service in cases of emergency to a strict minimum allowed by the Convention, so that recourse to compulsory call-up of labour under emergency powers does not develop into mobilization of labour for purposes of economic development, and that the legislation will be brought into conformity with the Convention and the indicated practice. The Committee requests the Government to provide, in its next report, information on the action taken to this end.

16. Article 2(2)(e). Minor communal services. The Committee previously noted the provisions of the Village Affairs Act No. 442, of 18 March 1924, according to which village affairs are divided into two categories: matters of a mandatory nature and matters subject to the request of the villagers; failure to perform mandatory action shall be penalized (section 12). The Committee recalled, referring to paragraph 37 of its General Survey of 1979 on the abolition of forced labour, that the exception of “minor communal services” allowed under Article 2(2)(e) of the Convention must satisfy certain criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which must be abolished (such as forced labour for general or local public works). The Committee observed that certain kinds of work listed under section 13 of the abovementioned Act as “mandatory for villagers” (such as, for example, building and repairing roads leading from the village to the government centre or neighbouring villages, or building bridges over such roads, etc.) do not seem to meet the criteria of “minor services” or “communal services”. Moreover, there is no provision for consultation in regard to the need of works or services exacted under section 13.

17. The Committee noted the Government’s indications in the report that studies were still being carried out in order to bring the national legislation into conformity with the ILO Conventions and that, in line with the provisions of the Emergency Action Plan launched by the Government in January 2003, the necessary work was under way primarily in the field of democratization and law reform and in the domain of fundamental rights and liberties.

18. The Committee notes that in its 2005 report the Government indicated that sections 12 and 13 of the Village Affairs Act are no longer applied in practice, and that services such as building and repairing village roads are now organized at the central or provincial government levels. The Government indicated once again that studies concerning amendment of the Village Affairs Act were still being carried out and that the requirements of the Convention were to be taken into consideration in this reform process. The Committee reiterates its hope that the necessary measures will be taken with a view to amending the above provisions of the Village Affairs Act in order to bring it into conformity with the Convention and the indicated practice, and that the Government will soon be able to report on the action taken to this end. The Committee notes the Government’s indication in its 2007 report that village services that do not qualify as “minor services” or “communal services” under the Village Affairs Act are, in fact, not governed by that Act but fall instead under the jurisdiction of the General Management of village services by virtue of Law No. 3202 of 9 May 1985; and that the General Management of village services was itself abolished by Law No. 5286 on 13 January 2005 but has continued to provide services during a transitional period. The Government has supplied a table of specific services and activities carried out under the General Management during the year 2006. The Committee defers its examination of this point pending the receipt of translations of the relevant texts.

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

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons for the purpose of sexual exploitation. The Committee previously noted a communication received in December 2003 from the International Confederation of Free Trade Unions (ICFTU) (now the International Trade Union Confederation). In that communication, the ICFTU focused its concern on the trafficking of women and children. It observed that:

–           Turkey is both a transit and a destination country for trafficked persons;

–           most women and girls whose destination is Turkey come from the Russian Federation, Republic of Moldova, Romania, Georgia, Ukraine, Armenia, Azerbaijan and Uzbekistan;

–           Turkey provides transit mainly for women from Central Asia, Africa, the Middle East and former Yugoslavia to other countries in Europe; and

–           most victims of trafficking find themselves forced into prostitution and some into debt bondage.

The Committee notes, under the new Penal Code (Act No. 5237 of 2004), that:

–           trafficking in persons for the purpose of subjecting them to forced labour or to slave-like conditions is punishable with a sentence of imprisonment of eight to 12 years (section 80);

–           the employment of homeless, helpless or dependent persons without payment or for substandard wages or forcibly subjecting them to inhumane working and living conditions is punishable by a term of imprisonment of six months to three years (section 117(2)); and

–           trafficking for the purpose of prostitution is punishable by a term of two to four years’ imprisonment (section 227(3)).

The Committee asks the Government in its next report to supply information concerning the application and enforcement of sections 80, 117(2), and 227(3) of the Penal Code, including statistical data and other information about investigations and prosecutions, as well as convictions and sentencing outcomes in cases of convictions.

The Committee notes the reference by the Government to other measures it has taken, including among other things:

–           training and awareness-raising seminars for law enforcement officers, organized in collaboration with the International Organization for Migration (IOM);

–           implementation, within the framework of financial cooperation between Turkey and the European Union and under the coordination of the General Directorate of Security, a “Project for enhancement of the institutional capacity with a view to combating trafficking in human beings”;

–           the conclusion on 24 September 2004 of a bilateral “Memorandum of Understanding for cooperation in the struggle against human trafficking and illegal migration” with the Republic of Belarus as a source country; and

–           the launching of a national emergency hotline and call service for use by victims of trafficking, as well as initiatives to establish women’s trafficking shelters in Ankara and other cities.

The Committee asks the Government to supply information in its next report on the progress of these measures and information on any more recent measures taken or contemplated to combat trafficking in persons for purposes of sexual exploitation or other forms of forced labour, including updated information on police training and other efforts to improve law enforcement capacity in relation to trafficking; as well as on efforts to strengthen intergovernmental cooperation on trafficking cases, particularly with source countries.

The Committee notes the indication of the Government that application of the regulations implementing the Work Permit for Foreign Workers Act (No. 4817 of 2003), particularly sections 7, 12, and 22 of the Act, has entailed the imposition of new obligations that are aimed at combating trafficking in persons. The Government indicated that copies of these provisions were attached to the report in an “Annex 2”; however, the annex does not appear to have been included, and the Committee asks the Government to supply a copy with its next report.

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

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

Article 1(1) and Article 2(1) and (2)(a) of the Convention. 1. Use of conscripts for non-military purposes. In its previous direct request, the Committee referred to its comments made under the Abolition of Forced Labour Convention, 1957 (No. 105), also ratified by Turkey, where it noted certain provisions under which conscripts in excess of the needs of the military can be obliged to work in public undertakings in lieu of military service, without their consent and under military discipline. The Committee has noted the Government’s reply in its 2003 reports on the application of Convention No. 29 and Convention No. 105 and refers to its observation made under Convention No. 105.

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

Article 2(2)(b). The Committee previously noted that, under article 18 of the Constitution of Turkey, the term "forced labour" does not include physical or intellectual work necessitated by the requirements of the country as a civic obligation, and sought clarification of this provision. In the absence of the Government’s reply, the Committee again requests the Government to describe such "physical or intellectual work" which may be exacted "as a civic obligation" and to supply copies of relevant provisions.

Article 2(2)(c). 1. Work of prisoners detained without conviction. In its previous comments, the Committee noted that, under article 18 of the Constitution of Turkey, the term "forced labour" does not include work required of an individual while serving a court sentence or under detention. It also noted that, under section 17 of the Enforcement of Sentences Act (No. 647 of 13 July 1965) and section 198 of the Regulations pertaining to the Administration of Penitentiaries and Detention Centres and to the Execution of Sentences adopted by decision of the Council of Ministers of 5 July 1967, No. 6/8517, as amended, prison labour shall be compulsory for convicts and remand prisoners. The Committee recalled that compulsory prison labour is excluded from the scope of the Convention only if such labour is imposed as a consequence of a conviction in a court of law.

The Committee notes with interest the Government’s indication in the report that a draft Bill on the execution of sentences has been prepared by a commission established in the Ministry of Justice with the objective of bringing the above provisions into conformity with the Convention, and that the Committee’s comments have been taken into consideration by the said commission. The Committee therefore hopes that the above Bill will soon be adopted and the legislation will be amended, so as to ensure that prisoners awaiting trial or detained without trial (such as remand prisoners or prisoners remanded by court decision, as referred to in section 198) are not obliged to perform labour, in order to bring legislation into conformity with the Convention on this point. It requests the Government to provide, in its next report, information on the progress made in this regard.

2. Work of prisoners for private employers. The Committee previously noted that, under section 17 of the Enforcement of Sentences Act referred to above, and under sections 198 and 200 of the Regulation No. 6/8517 referred to above, certain categories of convicts (such as e.g. convicts in low-security and medium-security prisons or convicts in maximum-security penitentiaries who have no more than two years to serve before being released, etc.) may be employed in places of employment in both the public and private sector. The Committee recalled that, under Article 2(2)(c) of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: "… that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations".

The Committee notes the Government’s indication in the report that a draft Bill on the execution of sentences referred to above contains provisions governing the employment of convicts, both inside and outside prison premises. It hopes that these provisions will be drafted in such a way as to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship, including the formal consent of the person concerned, as well as - given the absence of alternative access to the free labour market - further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security. The Committee requests the Government to provide, in its next report, information on the progress achieved in this regard and to supply a copy of the new law on the execution of sentences, as soon as it is adopted.

Article 2(2)(d). Powers to call up labour in cases of emergency. In its previous comments, the Committee noted that, under article 18 of the Constitution of Turkey, the term "forced labour" does not include services required from citizens during a state of emergency, which may be declared, under article 119 of the Constitution, in the event of natural disaster, dangerous epidemic diseases or a serious economic crisis. It also noted that, under section 10 of the State of Emergency Act (No. 2935, of 25 October 1983), the Council of Ministers may issue decrees to determine obligations and measures to be taken in the event of serious economic crisis, which may concern, inter alia, labour issues. The Committee recalled that the concept of emergency - as indicated by the enumeration of examples in Article 2(2)(d) of the Convention - involves a sudden, unforeseen happening calling for instant countermeasures. The notion of a "serious economic crisis", referred to in the above provisions, does not seem to satisfy these criteria.

The Committee notes the Government’s indication in the report that, in spite of the fact that the country has lived serious economic crises at times, no government in Turkey has resorted to the declaration of a state of emergency and no one has been subjected to the exaction of compulsory or forced labour during such a crisis.

While noting this indication, the Committee hopes that the necessary measures will be taken in order to limit the above provisions concerning the exaction of compulsory work or service in cases of emergency to a strict minimum allowed by the Convention, so that recourse to compulsory call-up of labour under emergency powers does not develop into mobilization of labour for purposes of economic development, and that the legislation will be brought into conformity with the forced labour Conventions and the indicated practice. The Committee requests the Government to provide, in its next report, information on the action taken to this end.

Article 2(2)(e). Minor communal services. The Committee previously noted the provisions of the Village Affairs Act No. 442, of 18 March 1924, according to which village affairs are divided into two categories: matters of a mandatory nature and matters subject to the request of the villagers; failure to perform mandatory action shall be penalized (section 12). The Committee recalled, referring to paragraph 37 of its 1979 General Survey on the abolition of forced labour, that the exception of "minor communal services" allowed under Article 2(2)(e) of the Convention must satisfy certain criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which must be abolished (such as forced labour for general or local public works). The Committee observed that certain kinds of work listed under section 13 of the abovementioned Act as "mandatory for villagers" (such as e.g. building and repairing roads leading from the village to the government centre or neighbouring villages, or building bridges over such roads, etc.) do not seem to meet the criteria of "minor services" or "communal services". Moreover, there is no provision for consultation in regard to the need of works or services exacted under section 13.

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

While noting this information with interest, the Committee reiterates its hope that the necessary measures will be taken with a view to amending the above provisions of the Village Affairs Act in order to bring it into conformity with the Convention, and that the Government will soon be able to report on the action taken to this end.

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

The Committee has noted the Government’s reply to its earlier comments, as well as observations made by the Turkish Confederation of Employer Associations (TISK) and the Turkish Confederation of Public Worker Associations, communicated by the Government with its report. It has also noted a communication received in December 2003 from the International Confederation of Free Trade Unions (ICFTU), which contains observations concerning the application of the Convention by Turkey. It has noted that this communication was sent to the Government in March 2004, for any comments it might wish to make on the matters raised therein. Since no reply has been received from the Government so far, the Committee hopes that the Government’s comments will be supplied with its next report, so as to enable the Committee to examine them at its next session.

Trafficking of women and children for the purpose of commercial sexual exploitation. In the communication referred to above the ICFTU expressed its concern on trafficking of women and children which occurs in Turkey. The ICFTU alleged that Turkey is both a transit and a destination country for trafficked people; most women and girls whose destination is Turkey come from the Russian Federation, Republic of Moldova, Romania, Georgia, Ukraine, Armenia, Azerbaijan and Uzbekistan; Turkey provides transit mainly for women from Central Asia, Africa, the Middle East and former Yugoslavia to other countries in Europe; most of them saw themselves forced into prostitution and some of them are forced into debt bondage.

Referring to its 2000 general observation concerning trafficking, the Committee asks the Government to respond to the allegations by the ICFTU and to provide, in its next report, information on measures taken or contemplated to prevent, suppress and punish trafficking in persons for the purpose of exploitation and to protect the victims of trafficking. 

As regards trafficking of children, the Committee notes that Turkey has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), and the Government has already provided its first report on the application of that Convention. In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee is of the view that the problem of the trafficking of children for the purpose of exploiting their labour can be examined more specifically under Convention No. 182. The protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly asks the Government to refer to its comments on the application of Convention No. 182.

The Committee is also addressing a direct request to the Government on certain other points.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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