Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (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.