Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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

Compulsory prison labour

1.  In its previous observation, the Committee asked for a clarification of the effect given to article 18 of the Turkish Constitution concerning the prohibition of forced labour, in relation to any compulsory work carried out in prisons in conditions falling under Article 1 of the Convention. In its latest report, the Government refers to the Regulations pertaining to the Administration of Penitentiaries and Detention Centres and to the Execution of Sentences. The Government indicates that especially sections 101, 112 and 197 to 220 of the Regulations are concerned with the employment of convicts and detainees who want to work in the prisons and that, according to these provisions, the purpose of the employment of the convicts and detainees is to rehabilitate them and to teach them a job or craft to earn their living after release. The Government concludes that such employment is covered by the second paragraph of article 18 of the Turkish Constitution as well as by article 4(3)(a), (b), (c) and (d) of the European Convention on Human Rights and is not considered forced or compulsory labour.

2.  The Committee has taken due note of these indications. It notes that, under section 198 of the Regulations referred to by the Government, adopted by decision of the Council of Ministers of 5 July 1967, No. 6/8517, on the basis of Act No. 647 of 13 July 1965 on the execution of sentences, prisoners are obliged to work in the institution. In its observation made in 1978 under the Convention, the Committee had noted that, under the terms of Ministry of Justice Circular No. 26/62 of 14 May 1975 addressed to the directors of penal institutions and broadcast by the Turkish radio, persons convicted in circumstances covered by Article 1 of Convention No. 105 were not compelled to work (but could choose to work and also revoke that choice). It would appear from the Government’s latest report that that circular is no longer given effect, and all convicted prisoners (without distinction whatsoever) are obliged to work, as indicated in section 198 of the abovementioned Regulations adopted by decision of 5 July 1967, No. 6/8517 (amended by Act No. 87/12046 of 17 August 1987).

3.  The Committee refers to the explanations provided in paragraphs 102-109 of its 1979 General Survey on the abolition of forced labour, where it indicated that the exceptions to the Forced Labour Convention, 1930 (No. 29), and specifically the exclusion of prison labour, do not automatically apply to the Abolition of Forced Labour Convention, 1957 (No. 105), which was designed to supplement the 1930 Convention.

4.  As indicated by the Committee in paragraph 105 of its 1979 General Survey:

Clearly, the 1957 Convention does not prohibit the exaction of forced or compulsory labour from common offenders convicted, for example, of robbery, kidnapping, bombing or other acts of violence or acts or omissions that have endangered the life or health of others. Although a prisoner may be directed to work under the menace of a punishment and against his will, the labour in this instance is not imposed on him for one of the reasons cited in the Convention. Consequently, in most cases, labour imposed on persons as a consequence of a conviction in a court of law will have no relevance to the application of the abolition of forced labour Convention. On the other hand, if a person is in any way forced to work because he holds or has expressed particular political views, has committed a breach of labour discipline or has participated in a strike, the situation is covered by the Convention.

5.  As regards the rehabilitative function of compulsory prison labour, referred to by the Government, the Committee indicated in paragraph 108 of its 1979 General Survey that:

… while prison labour exacted from common offenders is intended to reform or rehabilitate them, the same need does not arise in the case of persons convicted for their opinions or for having taken part in a strike. Furthermore, in the case of persons convicted for expressing certain political views, an intention to reform or educate them through labour would in itself be covered by the express terms of the Convention, which applies, inter alia, to any form of compulsory labour as a means of political education.

6.  For these reasons, the Committee has considered that any sanctions involving compulsory labour, including prison sentences involving compulsory prison labour, are covered by the 1957 Convention in so far as they are imposed in the five cases specified by the Convention.

Political coercion and punishment for holding views
opposed to the established system
(Article 1(a) of the Convention)

7.  The Committee notes that penalties involving compulsory labour 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 office holders); 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).

8.  While some of the provisions referred to in paragraph 7 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 notes 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 hopes that the necessary measures will soon be adopted with regard to the various provisions referred to in paragraph 7 above to bring national law into conformity with Article 1(a) of the present Convention, and that the Government will report on the action taken to this end.

9.  The Committee notes that a range of further provisions of national law provides 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 dealing with these in a request addressed directly to the Government so as to ascertain compliance with the Convention.

10.  The Committee has 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 notes the provisions of section 10 of the Military Service Act, No. 1111, as amended by Act No. 3358, 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 also notes that, under section 5 of the Council of Ministers Resolution No. 87/11945 of 12 July 1987, adopted pursuant to section 10 of Act No. 1111, 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 and those specified in the categories of education and occupation as needed by the armed forces.

11.  The Government indicates in its report that Act No. 3358 was applied between 1987 and 1991, and that since its abrogation in 1991 no conscripts in excess of the needs of the military are employed in public bodies and institutions. While noting this information, the Committee hopes that the Government will supply a copy of the repealing text and information on measures taken to repeal also the abovementioned Council of Ministers resolution No. 87/11945. It furthermore hopes that the Government will provide a copy of the principles governing the liability to military service of surplus reserves (Council of Ministers resolution No. 86/10266 of 17 January 1986), to which reference is made in the interim section of resolution No. 87/11945, or of any text repealing these principles.

Article 1(c) and (d) of the Convention

12.  In earlier comments the Committee had 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 empowers the master of a ship to use force to bring deserting seafarers back on board to perform their duties. The Committee notes that the Bill 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 hopes that section 1469 of the Commercial Code will likewise be amended to limit its scope to acts endangering the safety of the ship or the lives or health of persons, and that the Government will supply a copy of the amending provisions as soon as they are adopted.

Article 1(d)

13.  The Committee notes that Act No. 2822 respecting collective labour agreements, strikes and lockouts, dated 5 May 1983 (L.S. 1983-Tur.2), provides in sections 70, 71, 72, 73, 75, 77 and 79 for penalties 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 recalls 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". However, as indicated in paragraphs 120-132 of the Committee’s General Survey of 1979 on the abolition of forced labour, 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. Referring also to its standing comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee observes that the abovementioned provisions of Act No. 2822 are not limited in scope to the circumstances thus described. It hopes 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.