Observation (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

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

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

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

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

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

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

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

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

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

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