Informe provisional - Informe núm. 214, Marzo 1982

541. The Committee has already examined these cases on several occasions, the last being at its November 1981 Session when it submitted an interim report to the Governing Body.

1. 541. The Committee has already examined these cases on several occasions, the last being at its November 1981 Session when it submitted an interim report to the Governing Body.
2. 542. Since the Committee last examined these cases the ILO has received communications from the following complainant organisations: the World Confederation of Labour (WCL) (27 November and 17 December 1981); the World Federation of Trade Unions (WFTU) (2 November and 22 December 1981 and 18 and 27 January 1982); the International Confederation of Free Trade Unions (ICFTU) (16 November 1981). These communications were immediately passed on to the Turkish Government for its observations. In addition, the ILO sent a telegram to the Government on 4 January 1982 urgently requesting it to transmit its observations. The Government supplied certain information in a communication dated 11 February 1982.
3. 543. Turkey has not ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the cases

1. 544. The complaints of the three major international workers' Confederations, the WCL, ICFTU and WFTU, and other trade union organisations referred to their extreme concern in the face of the extensive repression suffered by a large segment of Turkey's trade union movement since the military takeover on 12 September 1980.
2. 545. The complainant organisations specifically denounced the violent deaths of trade unionists, the imprisonment of a large number of union officials and militants and the ill treatment which they allegedly received during their lengthy period of policy custody (at least 45 days), the possible death penalty facing 52 union leaders for having taken part in trade union activities such as strikes in defence of the occupational interests of the workers, the suspension of two major Turkish trade union Confederations, the DISK and the MISK, and affiliated unions and the freezing of their assets, the suspension of the right to strike throughout the country, the strict limitations on the right to bargain collectively and the allegation that trade unionists had been deprived of Turkish nationality.
   • (a) Request for direct contacts
3. 546. In view of the gravity of the allegations, the Committee on Freedom of Association expressed the wish it may 1981 that the Turkish authorities inform its Chairman at the International Labour Conference of the Government's intentions with respect to the possibility of a direct contacts mission to Turkey being carried out by a representative of the Director-General to discuss a number of questions pending.
4. 547. At its November 1981 Session, following the negative reply communicated by the Government on 30 September 1981, the Governing Body, on the recommendation of the Committee, recalled that on-the-spot visits constituted a practice used more and more frequently by governments and the Committee to help in reaching solutions to the problems at issue t therefore expressed the hope that the Government would reconsider its decision and accept the principle of an on-the-spot visit of a representative of the Director-General so as to examine together the questions pending in the present cases.
   • (b) Previous conclusions of the Committee
5. 548. On the substance of the cases pending, at its November 1981 Session the Governing Body, on the recommendation of the Committee;
   • - regretted the climate of insecurity and violence which surrounded the trade union movement and which had already led to the loss of two human lives in the case, under examination and urged the Government to take the strictest measures so that such incidents would not reoccur;
   • - expressed its deep concern that the death penalty had been called for in respect of a large number of trade unionists and that most of the other trade unionists undergoing trial were also liable to the death penalty;
   • - trusting that the sentences called for would not be pronounced, recalled that trade unionists must not be sentenced for actions which normally constitute trade union activities;
   • - requested the Government to keep it informed of the outcome of the trials under way, particularly in respect of the 52 trade unionists liable to capital punishment and the other trade unions mentioned by the complainants, a list of whose names was communicated to the Government, and to send its observations on the allegations of ill-treatment inflicted on imprisoned trade unionists.
6. 549. With regard to the suspension of trade union activities which had been in force for over a year, the Committee deeply regretted the fact that there was no sign of any improvement in that field and reminded the Government that measures which undermined the free exercise of freedom of association should be limited it their duration and scope to the immediate period of emergency. It therefore requested the Government to keep it informed of any progress made towards a return to a normal trade union situation. Finally, it requested the Government to supply its observations on the allegations concerning the use made of the trade union assets of the DISK and the allegation that trade unionists had been deprived of Turkish nationality.

B. New allegations

1. 550. In a communication dated 16 November 1981, the ICFTU states that its Executive Board Meeting in Brussels on 5 and 6 November 1981 passed a resolution expressing the grave concern pf the international trade union movement at the continued suspension of a number of trade unions freely founded under Turkish law. The resolution notes in particular that, in the process of virtually ending terrorist activity, widespread suffering has been inflicted on people unconnected with terrorism. It condemns all violations of human and trade union rights, including the long-term pre-trial periods of detention of trade union leaders and militants who have clearly not been involved in violence, and demands the release of imprisoned trade unionists awaiting trial and the lifting of the ban on collective bargaining, on strikes and on other trade union activities. It further pledges its solidarity with the suspended trade unions, opposes the unwarranted disposal of their properties and expresses fear that trade union rights will be curtailed in the revised labour legislation.
2. 551. The WCL, in its communication dated 27 November 1981, refers to the treatment inflicted on Mrs. Yardimci, the lawyer of the DISK officials. The WCL alleges that in January 1981 Mrs. Yardimci was arrested and tortured. As a result of the blows she received her legs were broken and, on 1 March, she was taken in a coma to the Haydar-pasa military hospital in Istanbul. Upon her return to prison on 20 April 1981, she was again tortured in order to make her admit that she was a member of an illegal organisation, which was untrue. She was again taken to hospital, then returned to prison. Thereupon she embarked upon a hunger strike to induce the authorities to reduce the pressure brought to bear on her, which they did. The WCL states that in November 1981 Mrs. Yardimci had been in prison for ten months without her lawyers being authorised to examine her file. She is allegedly accused of having obtained false documents for DISK officials to enable them to escape from Turkey, for which she would be liable to a prison sentence of 2 to 6 months.
3. 552. In their communications, the WCL and the WFTU state that the trial of the 52 DISK officials facing the death penalty began on 24 December 1981. According to the WFTU, from the very beginning of the trial the rights of the defence were restricted by the decision of the military tribunal to apply martial law.

C. The Government's reply

1. 553. In a communication dated 11 February 1982 and received shortly before the Committee's opening meeting, the Government replies in general terms to the previous conclusions of the Committee regarding the violence and insecurity which surround the trade union movement stating that the allegations are entirely false. According to the Government, its priority objective is the complete elimination of the general climate of insecurity and violence which has prevailed in the country in the recent past; considerable progress has now been made, the situation is much better than in the past and the positive effects of this improvement are also being felt by the trade union movement.
2. 554. The Government goes on to state that no trade unionist in Turkey has been taken to court for acts that are normally a part of trade union activities. Normal trade union activities must be regarded as acts that do not infringe the legislation in force; acts which infringe the law cannot be normal trade union activities. Consequently, the 52 trade unionists currently on trial are not charged with acts of a trade union nature, as indicated in paragraph 485 of the 211th Report. They are being judged on the basis of evidence showing that they have participated in, encouraged and supported terrorist and illegal activities with a view to overthrowing the regime and replacing it by another founded on a political doctrine which has no Place in Turkey's Constitutional system. Undertaking and pursuing activities of that kind are an infringement of the Constitution and punishable under the Penal Code. The Government confirms that the trial of the 52 trade unionists began towards the end of last year in Istanbul and has now reached the stage of the reading of the bill of indictment. According to penal procedure, this will be followed by the cross-examination of the persons on trial and their defence, after which the judges will decide freely as to the validity of the grounds for their accusation and will pronounce their judgement accordingly. The Government repeats that the bill of indictment requests the application of section 146 of the Penal Code against the persons on trial and lists the reasons and evidence in support of the charges.
3. 555. The Government states moreover that, according to penal procedure, all legal proceedings are instituted at the request of the public prosecutor addressed to the competent tribunal and begin with the reading of the bill of indictment. The latter contains a description of the acts constituting the crime and enumerates the evidence indicating that the crime was committed by the persons on trial. The public prosecutor merely expresses his opinion on the applicable section of the Penal Code (as is the case with the trade unionists concerned). This opinion is not binding on the judges who may convict the person on trial under other legal provisions. In the final stage of the proceedings, after having heard the cross-examination of the persons on trial by the tribunal and by their defence, the public prosecutor may change his opinion and request the application of another section of the law. In every case, the judges decide without any interference from anyone else, including the public prosecutor, whether to convict or acquit the persons on trial and, in the event of their conviction, determine the nature of their sentence. According to the Government, there is no emergency tribunal and no special jurisdiction, and no change has taken place in the structure or functions of the civil or military courts of appeal. Persons brought to trial are charged and judged in accordance with laws which have been in force for a long time. The trials are public and ways and means of appeal are always available.
4. 556. With regard to the communication from the WFTU dated 18 January 1982 claiming that the rights of the defence of the trade unionists on trial have been restricted from the very start, the Government replies that the allegation is false. According to section 18 of the State of Emergency Act (No. 1402) adopted in 1971, the state of emergency tribunals apply the provisions of martial law contained in Act No. 353 to establish military tribunals. Section 85/3 of the later authorises a tribunal to limit the number of lawyers present at a trial to the number of persons charged, which does not in any way prevent all the other lawyers, where there are any, from taking part in the defence. Moreover, since 10 December 1981 the trade unionists under arrest have been able to contact and communicate with their lawyers without any restriction.
5. 557. As to the allegation that the trade unionists or other persons under arrest have been ill treated, the Government states that a careful inquiry is being made into the matter. At the same time the case of certain trade unionists has also been examined. So far, no grounds have been found for any of the allegations of ill-treatment of trade unionists.
6. 558. Concerning Mrs. Oksan Yardimci whose name is cited in paragraph 469 of the Committee's 211th Report, the Government states that she is accused of belonging to illegal clandestine organisations. She was arrested by decision of the competent tribunal and her case is currently at the preliminary investigation stage. The various tribunals with which she has lodged appeals against her arrest have not found grounds for her release.
7. 559. Regarding the trade union situation in general the Government states that a return to normal is linked directly to the normalisation of the general situation in the country. Since the previous session of the Committee, the Head of State has officially announced a timetable for re-establishing a democracy which provides for a referendum in autumn 1982 on the Constitution currently being prepared by the constituent assembly and the organisation of general elections in autumn 1983, or spring 1984 at the latest. The process of normalisation has therefore begun. Meanwhile, all necessary measures for the protection of workers' rights and of their standard of living are being taken. The bar on dismissals is maintained and collective agreements due to end are renewed by the High Commission of Arbitration in the light of the workers' acquired economic and social rights and wage increases higher than the rate of inflation.
8. 560. The Government further states that, with respect to the DISK and the MISK whose activities have been suspended pending the decision of the tribunals, a return to the collective bargaining system would be liable to be against the interests of the members of those Confederations who might in that case resign. The other unions are at present free to organise their activities, there is complete freedom to create new unions and, since 12 September 1980, three new unions have been set up in Ankara.
9. 561. The Government adds that the DISK's trade union property is being managed in accordance with the provisions of Act No. 2316 by trustees appointed by the local labour courts. Its property has not been turned over to anyone else and is being used on behalf of the union to which it belongs. A printing works belonging to Genel-Is, for example, which had registered a deficit of 15 million Turkish pounds for three years during which it was managed by the trade union, is now bringing the union an annual profit of 60 million Turkish pounds. The Artemis holiday centre belonging to the same union, which is still open to its members, showed a profit last year of 8.5 million Turkish pounds. The Genel-Is bank deposits, which stood at around 11,532,194.00 Turkish pounds on 30 September 1980, amounted to 339,198,316.20 Turkish pounds on 31 December 1981. The Genel-Is building under construction has been expropriated at the request of the State Planning Organisation in accordance with the relevant legislative provisions. The Government states that the trustees of the union, who consider that compensation for expropriation was insufficient, have taken the State to court to have the sum originally calculated increased by 197, 354,958 Turkish pounds; legal proceedings in this case have not yet been completed.

D. The Committee's conclusions

1. 562. While taking note of the Government's observations, the Committee expresses its deep concern about the gravity of the allegations which continue to be brought to its knowledge. It keenly regrets the Government's late reply which does not indicate any appreciable improvement in the trade union situation in general.
   • (a) On-the-spot mission
2. 563. First of all, the Committee must deplore the fact that the Government has not replied positively to the proposals for direct contacts made on several occasions despite the time elapsed since the first proposal and several reminders sent by the Office. The Committee urges the Government to give its consent as soon as possible so that a representative of the Director-General may carry out a direct contacts mission to Turkey.
   • (b) Imprisonment of trade unionists
3. 564. As regards the substance of the cases in connection with the fate of 52 trade unionists facing the death sentence and other imprisoned trade unionists mentioned by the complainants, the Committee notes that the trial began on 24 December 1981 and, according to the complainant organisations, is not being conducted according to a normal procedure. The Government, for its part, states that in accordance with the State of Emergency Act (No. 1402) adopted in 1971, the state of emergency tribunals apply the provisions of martial law contained in Act No. 353 to establish military tribunals, under which the tribunal is entitled to limit the number of lawyers present at the trial.
4. 565. In this respect, the Committee recalls that in the past it has considered it appropriate to refer to the fundamental principles laid down in the Universal Declaration of Human Rights and in article 14 of the International covenant on civil and Political Rights of the United Nations. Every government must ensure observance of human rights, especially the right of anyone who is detained and charged with an offence to the guarantees of normal judicial procedure before the ordinary courts; and the Committee thinks it appropriate to recall that detained trade unionists, like anyone else, should have adequate facilities for the preparation of their defence and the right to communicate with counsel of their own choosing. On this point, the Committee notes that, according to the Government, the trade unionists have been able to communicate with their lawyers since 10 December 1981.
5. 566. The Committee reiterates the hope that the death sentences facing the trade unionists will not be pronounced. It recalls again that trade unionists must not be sentenced for acts which normally constitute trade union activities, and requests the Government to keep it informed of the situation of all the imprisoned trade unionists mentioned by the complainants, whose names are contained in the annex to the 211th Report. Lastly, it also requests the Government to release as quickly as possible all of the trade unionists unduly imprisoned.
6. 567. Regarding the allegations of ill-treatment inflicted on the trade unionists in prison, the Government states that a careful inquiry will be made into the matter. However, the WCL reports that one of DISK's lawyers, Mrs. Yardimci, was subjected to intolerable treatment. The Government's failure to supply any information in reply to the very detailed allegations of this complainant suggests that extreme physical injury was inflicted on this person.
7. 568. The Committee, totally reproving the ill-treatment said to have been inflicted on persons in prison and at all events the excessive period of police custody, which apparently is still at least 45 days under law, considers that such acts would constitute a clear violation of civil liberties and trade union rights. It notes the Government's assurances that, in Turkey, judges decide the cases before them without any outside interference. It accordingly calls upon the Government to guarantee to all the trade unionists the right to a fair trial before a fully independent court. The Government should also ensure that the living conditions in penitentiary establishments respect human dignity and safety of life and limb.
8. 569. The Committee therefore urges the Government to send information on the alleged torture of Mrs. Yardimci, counsel for the DISK, on the outcome of careful inquiries undertaken of which it makes mention and to state what measures in is taking to ensure that ill-treatment is not inflicted on the persons in prison.
9. 570. The Committee also requests the Government to review the existing legislation with a view to reducing the period of police custody, since the detention of trade unionists without bringing them before a court constitutes a serious infringement of trade union rights.
   • (c) Suspension of trade union activities
10. 571. In this point, the Committee notes that the Government reiterates its statements that a return to a normal trade union situation depends on a return to a normal situation in the country. The Committee notes that a timetable for re-establishing democracy has been announced by the Head of State. However, the Committee must recall that the right to strike has been suspended and collective bargaining restricted since 12 September 198. It stresses again that measures thus restricting the free exercise of trade union rights should be limited in time and scope to the immediate period of emergency. The Committee therefore calls upon the Government to lift as quickly as possible the measures constituting a serious interference with the free exercise of trade union rights. It requests the Government to keep it informed of any progress made in re-establishing trade union rights.
11. 572. Regarding the administration of the DISK trade union property, the Committee, while noting the information supplied by the Government that this property has been placed in the hands of trustees appointed by the labour courts, recalls first of all that the DISK and the MISK were suspended by administrative authority and not by judicial authority, contrary to the principles of freedom of association. The Committee also considers that, even if trustees have been appointed by the labour courts, the Government's intervention in the administration of trade union funds is not compatible with the principles of freedom of association which provide that the public authorities must refrain from any interference likely to limit the right of trade unions to organise their administration. Consequently, the Committee, recalling that the resolution adopted by the International Labour Conference in 1970 concerning Trade Union Fights and their relation to Civil Liberties reaffirmed that the right to protection of the property of trade union organisations is essential for the normal exercise of trade union rights, requests the Government to lift as quickly as possible the measures of intervention in question and to supply information on any steps taken to that end.
12. 573. Lastly, the Committee again requests the Government for its observations on the allegation - to which it has not replied - that trade unionists have been deprived of Turkish nationality.