Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

1. The Committee notes the Government's report and the comments of the Confederation of Turkish Employers' Associations (TISK). It also notes the Government's previous report and the previous comments of the Confederation of Turkish Trade Unions (TURK-IS) and of TISK which it had been unable to examine at its last session. The Committee notes that, according to TISK, the practical application of the Convention poses no problem from the point of view of the private sector. The comments of TURK-IS are dealt with under point 3.

2. Position of public servants dismissed or transferred during the period of martial law 1980-87. With regard to action taken to give effect to the 1989 Council of State ruling concerning reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402, the Committee recalls that it has been following the reinstatement process of thousands of workers for a number of years. In its previous observation, the Committee had requested information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their posts. The Government has replied that those who were not reinstated either did not apply or no longer meet the requirements for the job. In this regard, the Committee requests the Government to indicate whether all transferred workers were informed of their right to be reinstated, and to continue to provide detailed information on the number of applications processed and their outcome concerning reinstatement and compensation. With reference to its previous observation concerning reinstatement of military and civilian members of the armed forces and members of the security forces under Act No. 4045, the Committee again requests the Government to indicate whether any applications of the above-mentioned personnel for office or employment in public institutions and bodies other than their own institutions have been evaluated by the State Personnel Department as required in such cases under provisional section 5, and the result of such evaluation.

3. Amendments to Martial Law Act No. 1402. The Committee recalls that, in previous observations, it had noted that Act No. 4045 does not amend section 3(d) of Martial Law Act No. 1402, leaving unaltered the broad powers vested in martial law commanders when martial law is applicable, and had expressed the hope that appropriate changes would be made to ensure that the measures intended to safeguard the security of the State are sufficiently defined and delimited so as not to lead to discrimination on the basis of, inter alia, political opinion. TURK-IS states in its comments that Martial Law Act. No. 1402 continues to authorize martial law commanders to dismiss workers and public servants or send them to other areas without a court ruling and without observing the right to appeal provided for in Article 4 of the Convention. Noting the Government's statement that martial law as defined in article 122 of the Turkish Constitution is an exceptional and temporary measure, that the exercise of martial law was lifted as of 19 July 1987, and that some limitations had been placed on martial law commanders, the Committee is nevertheless of the opinion that commanders continue to be vested with broad powers which could potentially lead to discrimination in employment of public employees on the basis of political opinion in contradiction to the Convention. It therefore calls upon the Government, once again, to take immediate action to repeal or to amend the relevant law accordingly. Noting the Government's assurances given in its reply that the right of appeal for the application of section 3(d) of Act No. 1402 exists pursuant to article 125 of the Constitution and is further ensured by the Act Concerning the Procedure of Administrative Trials, No. 2577, the Committee once again requests the Government to provide statistical information on the number of appeals launched under this section and their outcomes.

4. Measures taken under the 1990 Security Investigation Regulation. The Committee notes that the "provisional" sections of Act No. 4045 were only applicable for a six-month period following its entry into force on 2 November 1994, but that, according to the Government, the implementing regulations, which, according to provisional section 7 of the Act, were to be adopted within six months of the entry into force of the Act, have not yet been adopted, and that therefore those provisions of the 1990 Regulation that do not contradict the provisions of Act No. 4045 are still applicable. The Committee would appreciate receiving information on the status of the implementing regulations and of the consequent repeal of the 1990 Security Investigation Regulation, as well as details on the use of the Regulation until its repeal.

5. 1991 Fight against Terrorism Act. The Committee notes with interest the 27 October 1995 amendment of section 8 of this Act (which contains a very broad definition of propaganda, carrying a sentence of imprisonment) introducing the element of intent or aim, thus restricting broad interpretations and the possibility of discrimination. It also notes, however, that section 1 of the Act (which introduced a very broad definition of terrorism, carrying a sentence of imprisonment) has not been amended. In this connection, and with reference to its previous observation, the Committee recalls that the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1995/L.10/Add.7 of August 1995) strongly condemned, in Turkey, the imprisonment of intellectuals, scholars, writers, journalists and parliamentarians on the grounds of their opinions. Considering that section 1 of the Fight against Terrorism Act had been cited by the Committee in its previous observations as being too broad in scope and as permitting possible discrimination on grounds prohibited by the Convention, the Committee draws the Government's attention to its 1996 Special Survey on equality in employment and occupation in which it stated that, in protecting individuals against discrimination in employment and occupation on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles, or simply a different opinion. It also stated that the protection of political opinion only applies to opinions which are either expressed or demonstrated, and does not apply if violent methods are used to express these opinions. The Committee requests the Government to consider further amendment of the Act to ensure that persons are not deprived of employment through imprisonment under this Act as a result of discrimination on any of the grounds set out in Article 1, paragraph 1(a), of the Convention.

6. The Committee notes with interest that the Constitutional Court repealed section 159 of the Civil Code, which required a husband's consent in order for his wife to be able to take up employment, on the grounds of inconsistency with the Constitution.

The Committee is addressing a request directly to the Government on other points.