Informe provisional - Informe núm. 363, Marzo 2012

1. 1133. The complaint is contained in communications from the Union of Judges and Public Prosecutors (YARGI-SEN) dated 4 August and 6 September 2011.
2. 1134. The Government replied in communications dated 2 November 2011 and 4 January 2012.
3. 1135. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 1136. In its communication dated 4 August 2011, YARGI-SEN explains that it is a trade union of judges and public prosecutors established on 20 January 2011 pursuant to the labour legislation of the republic of Turkey. With the view of obtaining legal personality, on 31 January 2011, the union submitted a petition for registration, together with the relevant documents, to the Governorship of Ankara. In reply, the Governorship of Ankara sent a letter to the founders of the trade union referring to the Public Servants Trade Unions Act (Act No. 4688) and requesting the union to amend its constitution so as to bring it into conformity with the legislation in force within a one-month period. The letter indicated that should the union fail to do so, a procedure for its dissolution would be initiated. According to the complainant, in its letter dated 2 February 2011 addressed to YARGI SEN, the Ministry of Labour and Social Security (MLSS) adopted the same attitude.
2. 1137. The complainant indicates that a court case for the dissolution of YARGI-SEN was initiated in Ankara on 11 March 2011. On 28 July 2011, the Ankara Labour Court ruled for the dissolution of YARGI-SEN. The complainant indicates its intention to appeal to the Supreme Court (Court of Appeals) against this ruling.
3. 1138. The complainant explains that the right of public servants to establish trade unions is regulated by Act No. 4688 adopted in 2001. Section 15 of the Act excludes judges and public prosecutors, as well as chairpersons and members of the supreme judicial bodies from the right to organize. Section 4 of this Act prohibits the establishment of craft unions. The complainant considers that these prohibitions are contrary to Convention No. 87 and, on the basis of article 90 of the Turkish Constitution regulating the adoption and implementation of international conventions, are null and void. The complainant refers, in particular, to paragraph 5 of article 90 of the Constitution according to which, “in the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail”. The complainant therefore considers that the judiciary is under the constitutional obligation to disregard the restrictions on the exercise of freedom of association under Act No. 4688, as the ratification of the Convention imposes on the Government an obligation to acknowledge the right of judges, among other workers, and public prosecutors to establish organizations of their own choosing without previous authorization.
4. 1139. The complainant alleges that the MLSS had declared YARGI-SEN to be non-existent even before the court’s decision. In this respect, the complainant explains that it had applied to the Accounting Department of the Office of the Ankara Public Prosecutorship for the deduction of trade union dues from the salaries of its members (check off, which is the legal right of public sector trade unions in Turkey). Upon receiving this request, the Ankara Public Prosecutorship contacted the MLSS and the Ankara Governorship. In its reply dated 29 April 2011, the MLSS Department of Labour stated that judges and public prosecutors cannot establish trade unions in Turkey and, accordingly, the YARGI-SEN’s request should be rejected. The Ankara Governorship’s reply of 25 May 2011 was to the same effect. On the basis of these replies, the Accounting Department of the Ankara Public Prosecutorship replied to YARGI-SEN on 30 May 2011 stating that deduction of trade union dues was not possible. The complainant considers that the abovementioned decisions violate basic trade union rights and reject the existence of YARGI-SEN as a legal entity.
5. 1140. Furthermore, the complainant alleges that, on 26 July 2011, the MLSS sent a letter to YARGI-SEN informing the union that the documents of the First General Congress of YARGI-SEN could not be accepted, as judges and public prosecutors cannot establish trade unions.
6. 1141. The complainant further alleges acts of anti-union discrimination against its leaders. In particular, it explains that on 18–19 June 2011, during its first ordinary congress, its three founding members (Dr Rusen Gultekin, Omer Faruk and Ahmet Tasurt) were elected to the union’s Executive Committee. On the same dates, these three trade unionists were transferred to positions in other provinces without any stated reasons. According to the complainant, this is in violation of section 18 of Act No. 4688 which stipulates that the workplace of trade union representatives and leaders cannot be changed by the employer without a just cause and clearly stated reasons. The complainant further explains that under the Turkish legislation and practice, in case of transfers, the position of the spouse of the person is to be taken into consideration, and alleges that this principle has been violated as well.
7. 1142. The complainant alleges that the transfers of three trade union leaders cannot be considered as an ordinary practice, since by being transferred from posts at the Supreme Court of Appeals to other posts in the provinces, their job security has been reduced. The complainant considers that Dr Rusen Gultekin, Omer Faruk and Ahmet Tasurt are victims of anti-union discrimination and provides in this respect the following information:
   • – Omer Faruk Emingaoglu: founder and President of YARGI-SEN; served as public prosecutor at the Supreme Court of Appeals; transferred to Istanbul as judge on 18 June 2011. His wife is a public servant working in Ankara with no chance of being transferred to Istanbul.
   • – Dr Rusen Gultekin: founder and former Financial Secretary, current Assistant President of YARGI-SEN; served as public prosecutor at the Supreme Court of Appeals; transferred to Gaziantep as judge on 18 June 2011. His wife is a lawyer working in Ankara.
   • – Ahmet Tasyurt: founding member and current member of the Executive Committee of the union; served as a public prosecutor at the Supreme Court of Appeals; transferred to Sanliurfa as public prosecutor.
8. 1143. The complainant further indicates that Dr Rusen Gultekin and Ahmet Tasyurt were also members of the Association of Judges and Public Prosecutors (YARSAV) and played an important role in the affiliation of YASRAV to the International Association of Judges (IAJ), European Association of Judges (EAJ) and the Magistrats Europeens pour la Democratie et les Libertés (MEDEL). YARGI-SEN believes that its intention to affiliate with the international trade union organizations (Public Services International (PSI) and the European Federation of Public Service Unions (EPSU) has also been the reason for the transfer of the trade union leaders.

B. The Government’s reply

1. 1144. In its communications dated 2 November 2011 and 4 January 2012, the Government refers to article 51 of the Turkish Constitution entitled “The right to organise labour unions”, which stipulates that the formalities, conditions and procedures to be applied in exercising the right to form a union shall be prescribed by law. The Government further refers to section 4 of Act No. 4688 according to which, “trade unions are established to carry out Turkey-wide activities by public servants working in the public workplaces in a service branch, based on the principle of service branch and that profession or workplace trade unions cannot be established”. Furthermore, according to sub-paragraph (b) of section 5 of the Act, chairpersons and members of higher judicial organs (e.g. judges, prosecutors, etc.) cannot establish and join trade unions. While pursuant to section 15 of the Act all public servants enjoy trade union rights, a limited number of public servants were not granted such rights due to the nature of their duties.
2. 1145. The Government considers that in determining which categories of public servants can be excluded from the scope of application of the Convention in question or the extent to which the guarantees provided for in the Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or employees whose duties are of a highly confidential nature, Article 1 of Convention No. 151 was taken into consideration.
3. 1146. The Government further refers to Article 8 of Convention No. 87, according to which, in exercising the rights provided for in the Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land.
4. 1147. The Government indicates that the applications made by Omer Faruk, public prosecutor at the Supreme Court of Appeals, and 22 judges and public prosecutors for the establishment of a trade union of judges and public prosecutors to the Ankara Governorship was rejected due to the lack of documents. The application filed with the MLSS was not accepted on the grounds that the establishment of the organization was contrary to sections 4 and 15 of Act No. 4688. On this basis, on 28 July 2011, Ankara 15th Labour Court had ruled on the dissolution of YARGI-SEN.
5. 1148. The Government concludes by reiterating that according to the legislation in force, judges, prosecutors and those considered to be members of this profession cannot be members of trade unions and cannot establish trade unions and their unions shall not acquire the status of legal entity.

C. The Committee’s conclusions

1. 1149. The Committee notes that the complainant in this case alleges that Act No. 4688 denies judges and public prosecutors the right to organize and that, on this basis, the Labour Court has ordered the dissolution of the complainant organization. YARGI-SEN further alleges anti-union discrimination in the form of transfers of its leaders.
2. 1150. The Committee notes that in its reply, the Government confirms that Act No. 4688 denies to certain categories of civil servants, including judges and public prosecutors, the right to organize and considers that this is in conformity with Article 8 of Convention No. 87 and Article 1 of Convention No. 151, both ratified by Turkey.
3. 1151. At the outset, the Committee wishes to recall with regard to Convention No. 151 referred to by the Government, that this Convention, which was intended to complement Convention No. 98 by laying down certain provisions concerning, in particular, protection against anti-union discrimination and the determination of terms and conditions of employment for the public service as a whole, does not in any way contradict or dilute the basic right of association guaranteed to all workers by virtue of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1061]. With regard to Article 8 of Convention No. 87, the Committee draws the Government’s attention to paragraph 2 of the Article, according to which the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
4. 1152. The Committee recalls that public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members [see Digest, op. cit., para. 220]. The Committee therefore considers that section 15 of Act No. 4688 which denies the right to set up trade unions to judges and public prosecutors is contrary to Article 2 of Convention No. 87, according to which workers “without distinction whatsoever” shall have the right to establish and join organizations of their own choosing without previous authorization, as well as to Article 8, paragraph 2, of the Convention. In this respect, the Committee recalls that for a number of years, the Committee of Experts on the Application of Conventions and Recommendations has been requesting the Government of Turkey to amend section 15 of Act No. 4688 so as to guarantee the right to organize to, among other public employees, judges and prosecutors.
5. 1153. The Committee notes from the information provided by the Government in Case No. 2789 that it is currently engaged in labour law reform with a view to bring the relevant legislation in line with Conventions Nos 87 and 98 and the newly amended Turkish Constitution. The Committee requests the Government to intensify its efforts in this regard and expects that, in consultation with the social partners, Act No. 4688 will be amended in the near future, as repeatedly requested by the ILO supervisory bodies. The Committee invites the Government to avail itself of ongoing ILO technical assistance in this regard and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case. The Committee urges the Government to take the necessary measures to immediately register YARGI-SEN as a trade union organization of judges and prosecutors so as to ensure that it can function, exercise its activities and enjoy the rights afforded by the Convention to further and defend the interests of these categories of public servants. The Committee requests the Government to keep it informed of the developments in this respect.
6. 1154. With regard to section 4 of Act No. 4688, which prohibits the establishment of trade unions on an occupational or workplace basis, the Committee notes from the information provided to the Committee of Experts by the Government that the letter intends to repeal the same prohibition imposed on workers in the private sector in the framework of ongoing legislative reform. The Committee expects that this prohibition will be also lifted in the public sector.
7. 1155. With regard to the alleged cases of transfers of trade union leaders, the Committee regrets that no specific information has been provided by the Government. It notes with concern that the alleged transfers of trade union leaders have taken place on the date of their election to the Executive Committee of the union. Emphasizing the importance of providing detailed replies to the allegations brought by complainant organizations so as to allow the Committee to undertake an objective examination, the Committee urges the Government to provide its observations on the alleged acts of anti-union discrimination suffered by trade union leaders Dr Rusen Gultekin, Omer Faruk and Ahmet Tasurt. The Committee stresses in this regard that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799].