Observación (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee has noted the Government’s reply to its earlier comments, as well as the observations of the Turkish Confederation of Public Worker Associations and the Turkish Confederation of Employer Associations (TISK) communicated by the Government with its report.

Article 1(a) of the Convention. Political coercion and punishment for holding views opposed to the established system. 1. The Committee previously noted that penalties of imprisonment (involving compulsory prison labour, under section 198 of the Regulations pertaining to the Administration of Penitentiaries 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 office holders);

(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).

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.

2. The Committee notes with interest that section 159 of the Penal Code referred to above has been amended by Act No. 4771, of 3 August 2002, by adding a new provision according to which the written, oral or visual expression of ideas merely with a view to criticizing the state authorities, without the intention to insult them, shall not involve any punishment. However, the amendment introduced in section 312 of the Penal Code referred to above by Act No. 4744 of 6 February 2002, which makes the inciting of hatred and enmity of the population punishable with imprisonment if such acts constitute a danger to public order, requires further clarification in the light of the above considerations, and the Committee hopes that the Government will supply copies of the court decisions which could define or illustrate the scope of this provision, so as to enable the Committee to ascertain whether it is applied in a manner compatible with the Convention. As regards the amendment of section 8 of the "Act against terrorism", the Committee notes with interest that, in virtue of Act No. 4744 of 6 February 2002, a penalty of imprisonment in this section was replaced with fines, but requests the Government to provide clarification of the phrase "unless such acts necessitate a heavier penalty" and to supply copies of the court decisions defining or illustrating the scope of this provision. The Committee also welcomes a decision to stop prosecutions under the old section 8 of the "Act against terrorism" and to release the accused persons, in virtue of a transitional section 10 inserted by Act No. 4928 of 15 July 2003, and requests the Government to provide information on the application of these measures in practice.

3. The Committee notes with interest the Government’s intention expressed in the report to bring the Penal Code into conformity with the international standards, as well as the Government’s indication that a Bill on the new Turkish Penal Code has been prepared and submitted to the Office of the Prime Minister. The Government also indicates that a Bill concerning the Execution of Sentences is now under elaboration and will soon be submitted to the Office of the Prime Minister. The Committee hopes that, as a result of the legislative measures referred to above, the national legislation will be brought into conformity with Article 1(a) of the Convention, so that no penalties involving compulsory labour could be imposed for peaceful expression of non-violent views that are critical of government policy and the established political system, and that the Government will soon be able to report the progress made in this regard.

4. In its 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 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):

-  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.).

The Committee pointed out, referring to the explanations contained in paragraphs 133-140 of its 1979 General Survey on the abolition of forced labour, 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.

5. The Committee notes with interest the Government’s indication in the report that changes are to be made in the Political Parties Act No. 2820, in accordance with the Emergency Action Plan published on 3 January 2003, with a view to ensuring that the whole population will be able to participate in the political parties and that it will be made possible to establish equity and justice in representation. The Committee reiterates its hope 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 soon report on the action taken to this end.

6. 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). Use of conscripts for purposes of economic development. 7.  The Committee previously noted the provisions of the Council of Ministers resolution No. 87/11945 of 12 July 1987, according to which 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. It also 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 lay 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 further 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. 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.

8. In its 2003 report, the Government confirms its previous indication that Act No. 3358, which amended section 10 of the Military Service Act, No. 1111, was no longer applied after 1991, though no action has yet been taken to repeal its provisions. While noting this information, and referring again to the explanations in paragraphs 49 to 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", the Committee reiterates its hope that the necessary measures will at last 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 soon be able to provide information on the progress made in this regard.

Article 1(c) and (d). Disciplinary measures applicable to seafarers. 9. In its earlier comments the Committee noted that:

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

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

The Committee also 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, and 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.

10. The Government indicates in its 2003 report that the studies concerning the amendment of the above provisions are being carried out by the Turkish Commercial Code Commission and the Subcommittee on the Maritime Law, under the coordination of the Ministry of Justice. The Committee requests the Government to keep the ILO informed about the progress of these studies and to provide information on the outcome of submission of the above Bill to Parliament. The Committee hopes that sections 1467 and 1469 of the Commercial Code will be brought into conformity with the Convention, and that the Government will soon be in a position to report the progress achieved in this regard.

Article 1(d). Punishment for participation in strikes. 11. 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". The Committee also referred to the explanations contained in paragraphs 120-132 of its 1979 General Survey on the abolition of forced labour, where it 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 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.

12. The Government indicates in its 2003 report that a tripartite "Science Board" established with the objective of bringing the Trade Unions Act No. 2821 and Act No. 2822 respecting collective labour agreements, strikes and lockouts into conformity with the international labour Conventions, has completed its work and submitted its report for consideration by the social partners. The Committee would appreciate it if the Government would supply a copy of this report and requests the Government to indicate the measures taken or envisaged in order to bring the above provisions into conformity with the Convention. 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), the Committee expresses the firm hope that Act No. 2822 of 1983 will soon be brought into compliance with Article 1(d) of the Abolition of Forced Labour Convention, 1957 (No. 105), and that the Government will report on the progress made in this regard.