Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 327, Marzo 2002

1. 848. In a communication dated 13 July 2001, the Confederation of Public Servants Unions of Turkey (TÜRKIYE KAMU-SEN) submitted a complaint of violations of freedom of association against the Government of Turkey.
2. 849. The Government sent its observations in a communication dated 22 October 2001.
3. 850. 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. The complainant's allegations

1. 851. In its communication dated 13 July 2001, the Confederation of Public Servants Unions (TÜRKIYE KAMU-SEN) presented the following allegations of violations of trade union rights in Turkey. Mr. Mehmet Akyüz has been an instructor in the "Ondokuz Mayis" (19 May) University in Samsun since May 1992. He has been working on fixed?term contracts of two years each which have been renewed without any problem since 1992. Mr. Mehmet Akyüz has also been the branch president of Türk Egitim-Sen (Trade Union of Public servants in the Education Branch of Activity, affiliated with TÜRKIYE KAMU-SEN) since 1992. He was also elected as the Samsun province representative of TÜRKIYE KAMU?SEN and has served in this capacity since 1995.
2. 852. During the first months of the year 2001, discussion about the enactment of the law on public servants intensified in Turkey. This positive step to bring the national legislation into line with the ratified ILO Conventions caused some problems at the workplace level. Mr. Mehmet Akyüz, in February 2001, made a number of public statements in Samsun, which had a media coverage in the local press. The statements constitute no infringement of the existing legislation on civil servants or of the Turkish Penal Code. However, the university administration, using these statements as a pretext, started an administrative disciplinary investigation concerning Mr. Mehmet Akyüz. Then, the contract of Mr. Mehmet Akyüz was not renewed on 1 July 2001, without any explicit reason given, which testifies to the fact that the de facto dismissal (non?renewal of a chain of fixed?term contracts) of Mr. Mehmet Akyüz is a result of his trade union activity, which is expected to be intensified following the promulgation of the Public Servants Trade Unions Act. The complainant contends that this dismissal constitutes a violation of the right to organize.

B. The Government's reply

1. 853. In its communication dated 22 October 2001, the Government asserts that the procedure concerning Mr. Mehmet Akyüz in no way constitutes a violation of Convention No. 87. In this respect, the Government refers to section 31 of the Higher Education Act No. 2547 concerning the terms of appointment of lecturers.
2. 854. The function of Mr. Mehmet Akyüz, who was a lecturer in the Class Teaching Department of the Faculty of Education, was terminated when the term of his employment contract elapsed, since there was no further need for his services and also in view of Decision No. 189 of 13 June 2001 of the Management Board of the Faculty of Education.
3. 855. Within the framework of the abovementioned section 31, it is stated clearly that, when a function is due to come to an end automatically at the end of a term of appointment and a reappointment is contemplated, any such reappointment shall be carried out, not as the extension of a term of appointment but according to the rules for a first appointment, and this is a mandatory provision. Consequently, the university administration has discretionary power in decisions on persons who are to be employed as lecturers. Similarly, the reappointment of Mr. Mehmet Akyüz, whose service relationship had come to an end once his term of appointment had elapsed, was also a matter for the discretion of the administration. It is one of the established principles of Turkish administrative law that that discretionary power is not absolute but must be exercised having regard to public benefit and the needs of the service concerned.
4. 856. Since, according to the principles of the examination instructions supplied to him, Mr. Mehmet Akyüz acted negligently and failed to fulfil his duty in conducting the personal talent stage one examination held in the Fine Arts Education Department of the Faculty of Education on 31 August 2000, the university opened a disciplinary investigation at the conclusion of which the abovementioned person was "rebuked" by the Disciplinary Board.
5. 857. During the period when Mr. Mehmet Akyüz was a lecturer at the 19th May University, the penalties of "rebuke" and "one-eighth reduction of his monthly pay" were also imposed on him at the conclusion of disciplinary investigations carried out because of various statements he had made to the press and a further investigation concerning the above person is still under way since he objected to the distribution of lectures.
6. 858. The Management Board of the Faculty of Education of the 19th May University examined the issue in the light of the negative conduct of the abovementioned person and came to the conclusion that it was difficult for him to conduct the education/teaching services expected of him; the Board then informed the Chancellor’s office in Decision No. 2001/189 that it considered that Mr. Mehmet Akyüz’s term of duty should not be extended.
7. 859. The disciplinary penalties mentioned above were not imposed because Mr. Mehmet Akyüz was the president of the Samsun section of the Turkish Teachers’ Union, but because his conduct had contravened the articles of the disciplinary regulations concerning administrators of the High Council for Education, Teachers and Civil Servants applying to his actions. The statements which Mr. Mehmet Akyüz made to the press were intended to inform public opinion in his capacity as president of the Samsun section of the Turkish Teachers’ Union of that union’s opinion on a certain subject and were directly insulting towards the university administration and to the teachers of the university and thus had nothing to do with his trade union activities.
8. 860. Consequently the fact that Mr. Mehmet Akyüz was not reappointed to his post at that university in accordance with section 31 of Act No. 2547 had nothing to do with his trade union activities and in no way constitutes a violation of Convention No. 87.
9. 861. Furthermore, since Turkey is a "state-governed by the rule of law", as established in its Constitution, all actions and procedures of the administration are open to the supervision of the judiciary. Mr. Mehmet Akyüz is therefore entitled to file an application with the Administrative Court against the decisions taken and the procedures followed by the university administration concerning his case.

C. The Committee's conclusions

1. 862. The Committee notes that the allegation in this case concerns the non-renewal of the contract of Mr. Mehmet Akyüz, the branch president of the Samsun section of the Turkish Teachers’ Union, for anti-union reasons.
2. 863. The Committee takes due note of the Government’s statement that Mr. Mehmet Akyüz was employed on a series of two-year fixed-term contracts and that, when his most recent contract elapsed in 2001, it was decided that there was no further need of his services. According to the Government, this decision was taken on the basis of two "rebukes" issued by the Disciplinary Board of the University. While the first rebuke concerned Mr. Mehmet Akyüz’s alleged failure to fulfil his duty in the conducting of an examination, the second was imposed at the conclusion of disciplinary investigations carried out because of various statements he had made to the press. While recognizing that the public statements made by Mr. Mehmet Akyüz were intended to inform public opinion in his capacity as president of the Samsun section of the Turkish Teachers’ Union of the union’s opinion on a certain subject, the Government asserts that these statements were directly insulting towards the university administration and to the teachers of the university and concludes that they had nothing to do with his trade union activities.
3. 864. The Committee observes that, while the complainant alleges that the non-renewal of Mr. Mehmet Akyüz’s contract was due to the public statements that he made in February 2001, the Government asserts that this was one of the reasons for his dismissal, but that he had also been rebuked on an earlier occasion. As concerns the public statements, both the Government and the complainant agree that these statements were made in Mr. Akyüz’s capacity as president of the local branch union, but the Government adds that these statements were insulting towards the university without providing any further details.
4. 865. In respect of Mr. Akyüz’s public statement, the Committee wishes to recall that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 153.] The general assertion made by the Government that Mr. Mehmet Akyüz’s public statements were insulting to the university, coupled with the complainant’s explanation that these statements took place within the framework of discussions concerning the draft public servants’ law, is not, in the Committee’s opinion, a sufficient reason to disregard the fundamental importance of the principle of freedom of expression in respect of trade union matters.
5. 866. The Committee considers that the non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Turkey. The Committee therefore requests the Government to institute an inquiry into the motivations for the non-renewal of Mr. Mehmet Akyüz’s contract and to review this decision in the light of the above principles. The Committee requests the Government to keep it informed of developments in this respect.