Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the communication from the International Confederation of Free Trade Unions (ICFTU) dated 15 December 2003, which relates to issues previously raised by the Committee under this Convention. The Committee will further consider the communication together with the Government’s next report and any observation the Government may wish to make in reply.

Further, the Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government’s report, as well as the comments of the Turkish Confederation of Employers’ Associations (TISK) and the Confederation of Progressive Trade Unions of Turkey (DISK).

1. TISK states that female employment has increased in the private sector in recent years, while DISK indicates that the problems related to discrimination against women, as previously raised by the Committee, still exist. The Committee notes the statistical information for the year 2000 provided by the Government according to which the level of female literacy and labour force participation remains very low. Noting that the number of illiterate women is still around four times higher than that of men, the Committee observes that illiteracy is not only a problem in rural areas, with 2.4 million illiterate persons out of 6 million living in the cities. The overall labour force participation rate of men is at 73.1 per cent, while that of women is as low as 25.5 per cent. In 2000, female unemployment in urban areas was at 13.1 per cent as compared to 7.9 per cent for male unemployment. The Committee requests the Government to continue to provide statistical data on the situation of women in education and employment and information on measures taken to ensure equality of opportunity and treatment of women in employment and occupation.

2. Discrimination on the basis of sex and religion. The Committee recalls the communication dated 9 May 1999 of the Workers’ House of the Islamic Republic of Iran, a workers’ organization, which stated that a female legislator wearing an Islamic headscarf was treated in a discriminatory manner when she was forced from the hall of the Grand National Assembly without being sworn in. The comments received from the Workers’ House also alleged discrimination in regard to the ban on wearing of headscarves at universities, academic centres and by public servants. The Committee observed that the requirement that public servants and university students uncover their heads would in fact disproportionately affect women wearing headscarves, possibly impairing or precluding altogether their right to equal access to education and employment due to their religious practices. It moreover drew attention to the particular significance the ban on headscarf takes on when viewed in the light of the low level of education of women and their low level of participation in the workforce.

3. In this context, the Committee notes section 56 of the Standing Orders of the Grand National Assembly which states that "in the House, the members of Parliament, the members of the Turkish Senate, the ministers, the officials of the Grand National Assembly Organization and other public officials shall be required to wear jackets and ties. Ladies shall wear suits". The Committee notes that this dress code does not preclude the wearing of headscarves by female legislators and it hopes the Government will take the necessary measures to ensure equal access of women to take up their posts in the Grand National Assembly, irrespective of their sex and religious practice which are unrelated to the inherent requirements of the job.

4. As concerns the ban on wearing headscarves of civil servants in public buildings, the Committee notes that section 5(a) of the Regulations on Dress Code for the Personnel of Public Institutions and Establishments of 16 July 1982 provides that women’s heads shall always be uncovered. The regulation applies broadly to all civil servants, personnel under contract and temporary employees and blue-collar workers employed in institutions covered by the general and additional budgets, local administrations, institutions with floating capital and public economic enterprises, as well as bodies and establishments attached to them (section 2). As regards the prohibition of wearing headscarves in universities, the Committee notes the judgement of the Constitutional Court of 7 March 1989 concerning Act No. 3511 of 10 December 1988 amending the Act on universities. In its judgement, the Court declared unconstitutional certain provisions of Act No. 3511 which, as an exception to the general prohibition of covering heads on the premises of universities, allowed the wearing of headscarves for religious reasons. The Court’s reasoning is mainly based on the supremacy of the principle of secularism in the Turkish constitutional order, whereas the provisions in question were also found to be in violation of the principle of equality and the right to freedom of conscience and belief. According to the Court, the laws of a secular State had to be free of any religious content in order to protect democracy and fundamental rights. Wearing headscarves in universities would exert pressure on women not covering their heads and was unduly favouring one particular group. According to the Constitutional Court, it was not possible to allow the wearing of Islamic headscarves at the present time in order to secure equality and freedom of conscience and thought for all.

5. In respect of the above, while noting the complexity of the situation, the Committee reiterates its concern that the current broad prohibition for students and civil servants from wearing head coverings may lead to situations incompatible with the principle of equality as envisaged by the Convention. As stated previously, such a requirement would in fact disproportionately affect Muslim women, possibly impairing or precluding altogether their right to equal access to education and employment, due to their religious practices. The Committee deems it necessary to recall that the Government has undertaken to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality and treatment in respect to employment and occupation, with a view to eliminating any discrimination, including on the basis of sex and religion. The Committee also recalls that, in order to be permissible under the Convention, any distinction or exclusion that has the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation must be based on the inherent requirements of a particular job. The Government is therefore requested to consider ways and means to promote and ensure equal access of Muslim women to employment in the civil service irrespective of their religious practice, and to keep the Committee informed of any development concerning this matter. Recalling that the access of women to education is one of the factors determining their participation in the labour force and that the general level of education of women and their labour force participation in Turkey remains very low, the Committee also requests the Government to provide information on measures taken or envisaged to ensure that all women, including Muslim women and girls, enjoy their equal rights to education, including at the university level. The Committee once again requests the Government to provide statistical information on the numbers of women who have been precluded from attending university or from obtaining or maintaining jobs in the public service, due to the ban on headscarves.

6. Position of public servants dismissed or transferred during the period of martial law. The Committee refers to its previous comments concerning the reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402. The Committee had requested information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their jobs. Subsequently, the Government stated that those who were not reinstated in their jobs either did not apply or no longer met the requirements of the job due to prison sentences handed down under the Penal Code. Recalling its request to the Government to supply detailed information on the percentage of the 955 transferred employees that were not reinstated due to the imposition of prison sentences, indicating for each employee the nature of the criminal charges brought and the penalties imposed, the Committee notes the Government’s statement to the effect that the information requested was not available in the records of the relevant ministries and establishments. The Committee reiterates its request and hopes that the Government will make every effort to obtain the necessary information and to provide it to the Committee with its next report.

7. Amendments to Martial Law Act No. 1402. The Committee notes that the Government’s report contains no new information concerning the need to repeal or amend section 3(d) of Martial Law Act No. 1402. The Committee recalls that section 3(d) of that Act vests martial law commanders with broad discretionary powers to transfer workers and public employees to other areas. In the view of the Committee, this could lead to discrimination in employment on the basis of political opinion in contravention of the Convention. The Committee has previously expressed its hope that appropriate changes would be made so as to ensure that measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination. Recalling the Government’s assurances that the right to appeal concerning section 3(d) of Act No. 1402 exists pursuant to article 125 of the Constitution and to Act No. 2577 concerning the procedures of administrative trials, the Committee once again requests the Government to provide statistical information on the number of appeals that have been lodged over the application of section 3(d) of Act No. 1402 and their outcomes.

8. Security investigations. The Committee recalls its previous comments on resolution No. 90/245 of 8 March 1990 of the Council of Ministers and section 1 of Act No. 4045 of 26 October 1990 concerning security investigations. It was concerned that the broad scope of the provisions contained therein may lead to discrimination in employment and occupation on the basis, inter alia, of political opinion. In this context, the Committee notes the adoption of the Regulations on Security Investigations and Investigation of Records of 14 February 2000, which replace the regulations on the same subject as contained in resolution No. 90/245 of 8 March 1990. The Committee notes that security investigations and investigations of records are limited to personnel to be employed in units and departments of ministries and public institutions and bodies holding classified information or documents, as well as personnel to be employed in the Turkish armed forces, in the security and intelligence organizations, and in prison and detention centres. The Government is requested to provide indications as to which units, departments and functions in ministries and other public institutions have been determined, under section 6 of the Regulations, as units and departments holding classified information. The Committee also asks the Government to explain the meaning and content of the clause "any connection with the police forces and intelligence units" which is a common element of the terms "security investigations" and "investigation of records" as contained in section 4(f) and (g). The Committee notes that a "security investigation" includes, inter alia, an assessment whether the person has engaged in "destructive or separatist activities" or has acted in contravention of Act. No. 5816 on offences committed against Atatürk or of the principles and reforms of Atatürk (sections 4(g) and 11(c)). It notes with interest that the meaning of "destructive and separatist activities" has been limited to "activities aiming to violate the indivisible integrity of the State with its territory and nation and to endanger the existence of the State and the republic or to destroy fundamental rights and freedoms" (section 4(k)). It requests the Government to provide information on how this provision is applied in practice, including indications as to the number and nature of cases involving an exclusion from employment or transferral resulting from the application of section 11(c) in connection with section 4(g) and (k). The Committee also wishes to receive a copy of the duty instructions, under section 12(e) of the Regulations, of the authorities authorized to investigate. Overall, the Committee observes that progress has been made in enhancing the precision of certain terms contained in the previous legislation and in limiting the scope of security investigations. However, the Committee emphasizes the continuing need to ensure that the measures taken by the authorities authorized to request and conduct security investigations are in practice in line with the requirements of the Convention.

9. The 1991 Anti-Terrorism Act. The Committee recalls its previous comments on the broad definitions of terrorism in section 1 of this Act and the offence of propaganda contained in section 8. It expressed concern that the definitions used would not appear to lay down sufficient criteria upon which protection against imprisonment, based on political opinion or some other ground mentioned in the Convention, would be ensured. The Committee previously noted the introduction of the element of intent in section 8, thus restricting broad interpretations and the possibility of discrimination and the Government’s statement that section 1 limits the definition of terrorism to violent acts. However, the Committee noted the fact that journalists have been convicted under the Anti-Terrorism Act for expressing their opinions. As the Committee understands that relevant legislative changes have occurred, it requests the Government to provide detailed information on any changes concerning the Anti-Terrorism Act or other legislation that would further restrict the possibility of journalists, writers and publishers being deprived of their employment or occupation for expressing their political opinion. The Committee once again asks the Government, in order to avoid any ambiguity, to consider revising section 1 of the Act to ensure that no provision of the Act would lead to a conviction for expressing political opinions by non-violent means. The Committee also requests the Government to continue to provide information on the number, nature and outcomes of cases under the Act involving convictions pronounced against journalists, writers and publishers.

10. Non-discrimination on other grounds. The Government reiterates that equality of all Turkish citizens before the law is guaranteed under Turkish legislation and that they face no discrimination whatsoever as far as their statutory rights are concerned. The Government also states that present-day Turkey contains a multitude of ethnic, religious and cultural elements and that different ethnic identities, including the Kurdish, are acknowledged and accepted. The Committee recalls that while legislative provisions on equality and non-discrimination are an important element of a national equality policy in accordance with Article 2 of the Convention, they cannot constitute by themselves such a policy. The Convention provides for the elimination of discrimination in law and practice and, to this end, requires proactive measures towards achieving equality of opportunity and treatment of all workers. In this connection, the Committee notes the information provided by the Government on the projects to promote educational opportunities and employment carried out by the South-eastern Anatolia Project Regional Development Administration, including for nomadic/semi-nomadic communities. Noting from information available to it that recent reforms have introduced the possibility of private schools teaching in languages other than Turkish, the Committee asks the Government to provide information on this reform and on any other measures adopted or envisaged to promote equality in employment and occupation, irrespective of race, colour, national extraction and social origin.

The Committee is raising other points in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.