Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (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.