Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 342, Juin 2006

906. The Committee examined this case at its November 2005 meeting [see 338th Report, paras. 1284-1305, approved by the Governing Body at its 294th Session (November 2005)].

1. 907. The Government sent its observations in communications dated 30 November 2005 and 3 February 2006.
2. 908. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 909. In its previous examination of the case in November 2005, the Committee made the following recommendations [see 338th Report, para. 1305]:
   • (a) The Committee takes note of Egitim Sen’s concern that it might still be dissolved, even though it had taken steps to delete the article of its statutes that was at issue, and trusts that this will not be the case. It requests the Government to inform it of the current status of Egitim Sen.
   • (b) The Committee also requests the Government to provide additional information regarding the contradictions between the Egitim Sen statutes and the national Constitution and any impact that the final court decision might have on freedom of association.

B. The Government’s reply

1. 910. In communications dated 30 November 2005 and 3 February 2006 the Government indicated that the case brought against Egitim Sen by the Chief Public Prosecutor’s Office of Ankara claiming that an article in its statute was in contravention of the Turkish laws was dismissed by the Second Labour Court of Ankara on 27 October 2005 on grounds that the subject matter of the case no longer existed and that there was no cause for decision on the merits of the case, as the concerned article had been amended by the union. The court found that since Egitim Sen had amended its statute deleting the term “education in mother tongue”, there was no ground to make a decision on the dissolution of the union. The decision became final on 17 November 2005, in the absence of an appeal within the prescribed period. A copy of the decision was provided by the Government.

C. The Committee’s conclusions

1. 911. The Committee recalls the background of this case according to which the Attorney-General of Ankara filed a lawsuit on 10 June 2004 under section 37 of the Public Employees’ Trade Unions Act No. 4688, requesting the courts to order the dissolution of the Trade Union of Public Servants in the Education Branch (Egitim Sen), because its statutes provided as one of the trade union’s purposes the defence of “the right of all citizens to education in their mother tongue and the development of their culture”, which was contrary, according to the Attorney-General, to constitutional and legislative provisions prohibiting the teaching of any language other than Turkish as mother tongue, and article 3 of the national Constitution which provides that the Turkish State, along with its nation and territory, constitutes an indivisible entity.
2. 912. In September 2004 and February 2005 the Second Industrial Court of Ankara ruled in favour of Egitim Sen, arguing that the Turkish Constitution should be interpreted in accordance with the European Convention on Human Rights, and that a decision to close down the union was not in compliance with Articles 10 (freedom of expression) and 11 (freedom of association) of the Convention. It further noted that the disputed provision in the statutes of Egitim Sen did not constitute a risk for the unity of the nation and the territory of the Republic. In May 2005 the Supreme Court of Appeals reversed this ruling, stipulating that “freedom of association can be limited for the protection of national security, integrity of the country and public order” and that “Turkish citizens cannot be provided education in a language other than Turkish”.
3. 913. The Committee recalls from a previous communication of Education International dated 1 September 2005, that the decision of the Supreme Court was final and there was no possibility to object to it. The Second Labour Court was therefore expected to examine the case again and render a decision in line with that of the Supreme Court. In light of this situation, and in order to avoid an impending dissolution, Egitim Sen amended its statutes on 3 July 2006 so as to delete the term “education in mother tongue”. Parallel to this, it filed an application to the European Court of Human Rights.
4. 914. The Committee notes that, according to the latest information provided by the Government, the case was dismissed In a final decision by the Second Industrial Court of Ankara which ruled that there were no longer any grounds for the dissolution of Egitim Sen as the trade union in question had previously amended its statute deleting the reference to the right of all citizens to “education in their mother tongue”. The Committee also notes that the Government has not provided any additional information on the contradictions between the Egitim Sen statutes and the national Constitution and any impact that the final court decision might have on freedom of association, as previously requested by the Committee.
5. 915. The Committee considers it necessary to emphasize that, in accordance with Convention No. 87, ratified by Turkey, trade unions should have the right to include in their statutes the peaceful objectives that they consider necessary for the defence of the rights and interests of their members. To fully guarantee the right of workers' organizations to draw up their constitutions and rules in full freedom, national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 333]. It also emphasizes that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., para. 153] and that the full exercise of trade union rights calls for a free flow of information, opinions and ideas within the limits of propriety and non-violence. A provision that union rules shall comply with national statutory requirements is not in violation of the principle that workers’ organizations shall have the right to draw up their constitutions and rules in full freedom, provided that such statutory requirements in themselves do not infringe the principle of freedom of association and provided that approval of the rules by the competent authority is not within the discretionary powers of such authorities [see Digest, op. cit., para. 334]. While noting that limits may be placed on these abovementioned rights where the manner in which they are expressed may imminently jeopardize national security or the democratic order, the Committee has serious concerns that references in a union’s by-laws to the right to education in a mother tongue have given and could give rise to the call for dissolution of the trade union.
6. 916. The Committee requests the Government and the complainants to keep it informed of developments concerning the application of Egitim Sen to the European Court of Human Rights and of the outcome of the proceedings.