Observación (CEACR) - Adopción: 1993, Publicación: 80ª reunión CIT (1993)

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

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

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

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

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

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

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

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

Proposed amendments to Act No. 1402 respecting martial law

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

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

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

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

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

Measures taken on the basis of security investigations

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

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

Fight Against Terrorism Act of 12 April 1991

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

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

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