Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee has noted the Government’s reply to its earlier comments, as well as the observations of the Confederation of Progressive Trade Unions of Turkey (DISK) and the Confederation of Turkish Employers’ Associations (TISK) appended to the Government’s report.

Article 1(a) of the Convention. Political coercion and punishment for holding views opposed to the established system. 1. In its earlier comments, the Committee noted that penalties of imprisonment (involving compulsory prison labour, under 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) may be imposed under various provisions of national legislation in circumstances falling within Article 1(a) of the Convention, namely:

(a)  section 143 of the Penal Code (participation in foreign associations and institutions without permission of the Government);

(b)  section 159 of the Penal Code (insulting or vilifying, inter alia, "Turkism", various state authorities, the state laws or the decisions of the National Grand Assembly);

(c)  section 241 of the Penal Code (public censuring, by ministers of religion, of government administration, state laws or government activities);

(d)  sections 266-268 of the Penal Code (insulting public officeholders); in this connection, the Committee notes from section 481 of the Code that, in the cases specified in articles 266, 267 and 268, a demand to prove the truth of the imputation of an act harmful to the honour or dignity of a government official or public servant shall not be sustained and considered, even if the imputed act is related to his or her office or public service;

(e)  section 312, paragraphs 2 and 3, of the Penal Code (publicly inciting hatred and enmity of the population with reference to distinctions of class, race, religion or region);

(f)  section 526, paragraph 2, of the Penal Code (acting contrary to prohibitions or obligations under Act No. 671 concerning the wearing of headgear and Act No. 1353 concerning the adoption and use of Turkish letters);

(g)  section 536, paragraph 2, of the Penal Code (public affixing of printed, handwritten or drawn papers, posters, etc., inter alia, on any kind of means of transportation or privately owned signs or boards, without the permission of the authorities);

(h)  section 8 of the "Act against terrorism", No. 3713 of 12 April 1991 as amended on 13 November 1996 (written or oral propaganda, assemblies, manifestations and demonstrations against the indivisibility of the State).

2. The Committee noted that, while some of the provisions referred to above, in particular under (e) and (h), might appear to be aimed at acts of violence or incitement to the use of violence, armed resistance or an uprising, their actual scope, as shown through their application in practice, is not limited to such acts, but provides for political coercion and the punishment of the peaceful expression of non-violent views that are critical of government policy and the established political system, with penalties involving compulsory labour. In this connection, the Committee noted that in recent years a number of cases, in which penalties involving compulsory labour had been imposed in application of the abovementioned sections 159 and 312, paragraphs 2 and 3, of the Penal Code and section 8 of the "Act against terrorism", were brought before the European Court of Human Rights which held that the convictions based on national law constituted a breach of article 10 of the European Convention on Human Rights, which protects the freedom of expression. The Committee expressed the hope that the necessary measures would soon be adopted with regard to the above provisions in order to bring national law into conformity with Article 1(a) of the present Convention. Having noted that the Government’s report contains no information as to the substance of the questions raised, the Committee expresses strong hope that the Government will not fail to provide such information in its next report.

3. In earlier comments, the Committee referred to certain provisions of the 1965 Act concerning political parties, which prohibited political parties from asserting the existence in Turkey of any minorities based on nationality, culture, religion or language and from attempting to disturb national security by conserving, developing or propagating languages and cultures other than the Turkish language or culture. It requested the Government to provide copies of legislation in force governing political parties and associations. The Committee has noted that penalties of imprisonment (involving compulsory labour) may be imposed under the following provisions of the Political Parties Act (No. 2820, of 22 April 1983) and the Associations Act (No. 2908, of 6 October 1983), of which the copies have been supplied by the Government with its latest report:

-  sections 80, 81 and 82, read in conjunction with section 117, of the Political Parties Act (seeking to alter the principle of the unity of the State, claiming the existence of minorities based on a national or religious culture or on racial or linguistic differences, seeking to form minorities by protecting and promoting languages and cultures other than the Turkish language and culture, using any language other than Turkish in the drafting and publication of parties’ statutes and programmes, advocating regionalism);

-  sections 5 and 76 of the Associations Act (attacking the principle of the unity of the State; carrying out activities based on principles of regionalism, social class, religion or sect; claiming the existence of minorities based on a national or religious culture or on racial or linguistic differences, etc.).

4. The Committee points out, referring to the explanations contained in paragraphs 133-140 of its 1979 General Survey on the abolition of forced labour, as well as in paragraph 2 of this observation, that prohibitions enforced by penalties involving compulsory labour which affect the constitution or functioning of political parties or associations, either generally or where they advocate certain political or ideological views, are incompatible with Article 1(a) of the Convention. The Committee hopes that the necessary measures will be taken in order to bring the Political Parties Act and the Associations Act into conformity with the Convention and that the Government will report on the action taken to this end.

5. In its earlier comments, the Committee also noted certain other provisions of national law which provide for the imposition of penalties involving compulsory labour in circumstances defined in terms which are wide enough to give rise to questions about their application in practice. The Committee is again dealing with these provisions in a request addressed directly to the Government so as to ascertain their compliance with the Convention.

Article 1(b). 6. The Committee previously noted the observation 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 noted the provisions of section 10 of the Military Service Act, No. 1111, as amended by Act No. 3358, as well as section 5 of the Council of Ministers Resolution No. 87/11945 of 12 July 1987, adopted pursuant to section 10 of Act No. 1111, which lays down procedures relating to the surplus reserves, including the procedures concerning the persons liable to military service who are assigned duties in public bodies and institutions. It has also noted the Council of Ministers Resolution No. 86/10266 of 17 January 1986 containing principles governing the performance of military service duties by the Turkish Armed Forces Surplus Reserves, supplied by the Government with its latest report. The Committee noted that, under the above legislation, the persons liable to perform their military service obligations by working in public bodies and institutions are determined by the drawing of lots from among the persons remaining after subtraction of those wishing to pay the exemption sum.

7. In its latest report, the Government confirms its previous indication that Act No. 3358 was applied between 1987 and 1991, but since that time there have been no conscripts in excess of the needs of the military, so the Act was no longer applied. The Government indicates, however, that Act No. 3358, which was indicated in its previous report as abrogated, is still in force, though has not been applied in practice since then. While noting this information, the Committee again refers to paragraphs 49-54 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"; even where young people engaged in economic development work or work of general interest as part of their compulsory national service are volunteers, and even where such volunteers are excused from compulsory military service, "this should take the form of an exemption and not be used as a means of pressure so that a civic service can recruit a number of people for whom there would in any case not be any place in the armed forces". 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 with the Convention and the indicated practice, and that the Government will provide information on the action taken to this end.

Article 1(c) and (d). 8. In earlier comments the Committee noted that:

(a)  under section 1467 of the Commercial Code (Act No. 6762 of 29 June 1956) seamen may be forcibly conveyed on board ship to perform their duties;

(b)  under section 1469 of the Commercial Code, various breaches of discipline by seamen are punishable with imprisonment (involving, as previously noted, an obligation to perform labour).

The Committee further noted that the Government had submitted to Parliament a Bill to amend section 1467 of the Commercial Code, which contains a provision limiting the powers of the master under section 1467 to circumstances jeopardizing the safety of the ship or endangering the lives of the passengers and the crew. The Committee expressed the hope that section 1469 of the Commercial Code would likewise be amended to limit its scope to acts endangering the safety of the ship or the lives or health of persons. The Government indicates in its latest report that the Bill is still in Parliament to be enacted. The Committee hopes that the Bill will be adopted in the near future and that the above provisions will be brought into conformity with the Convention. It requests the Government to supply a copy of the amending text, as soon as it is adopted.

Article 1(d). 9. The Committee previously noted that Act No. 2822 respecting collective labour agreements, strikes and lockouts, of 5 May 1983, provides in sections 70-73, 75, 77 and 79 for penalties of imprisonment (involving compulsory labour) as a punishment for the participation in unlawful strikes, for disregard of prohibitions to call a strike, for unlawful strikes intended to influence decisions, and for disregard of an order for the suspension of a strike or of restrictions imposed on the number of strike pickets and on the right of peaceful assembly in front of the employer’s establishments. The Committee recalled that Article 1(d) of the Convention explicitly prohibits the use of sanctions involving any form of compulsory labour "as a punishment for having participated in strikes".

10. The Government states in its report that the above provisions are based upon the definition of illegal strikes, and sanctions are applicable for participation in illegal strikes. According to the Government’s view, these sanctions should not be construed and applied as a means of forced or compulsory labour for having participated in strikes. In this connection, the Committee again draws the Government’s attention to the explanations contained in paragraphs 120-132 of its 1979 General Survey on the abolition of forced labour, where the Committee has considered that Article 1(d) of the Convention is not opposed to the punishment of collective acts aimed at paralysing services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; nor to the punishment of participation in purely political strikes, i.e. strikes which are not aimed at furthering the economic and social interests of the participants; nor to the enforcement of the observance of normal procedures to be followed in calling and organizing a strike, provided that the provisions governing these matters do not impose restrictions on the right to strike itself. The Committee observed, however, that the abovementioned provisions of Act No. 2822 are not limited in scope to the circumstances thus described. It therefore reiterates its hope, referring also to its comments addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the necessary measures will be adopted with regard to Act No. 2822 of 1983 to ensure the observance of Article 1(d) of the Abolition of Forced Labour Convention, 1957 (No. 105), and that the Government will report on action taken or contemplated to this end.