Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee has noted the Government’s reply to its earlier comments, and it has also noted the observations of the Confederation of Public Servants Trade Unions, the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Turkish Trade Unions (TÜRK-IŞ), 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 or expressing views opposed to the established system. The Committee has 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 the Turkish Penal Code, including, among others, section 159 (insulting or vilifying, inter alia, “Turkism”, various state authorities, the state laws or the decisions of the National Grand Assembly) and section 312 (publicly inciting hatred and enmity of the population with reference to distinctions of class, race, religion or region) and under section 8 (written or oral propaganda, assemblies, manifestations and demonstrations against the indivisibility of the State) of the Anti-Terrorism Law, No. 3713 of 12 April 1991, as amended on 13 November 1996, in circumstances falling within Article 1(a) of the Convention.

The Committee noted that, while certain of the provisions 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.

The Committee notes that section 159 of the Penal Code was amended by Act No. 4771, of 3 August 2002, and that section 159 now corresponds to section 301 of the new Penal Code (Act No. 5237 of 2004). The Committee notes that this provision, under its fourth subsection, protects expression directed at “Turkishness”, the Republic, or organs and institutions of government, if intended only to criticize, while the prior subsections continue to penalize such expression if it “publicly denigrates” those institutions. The Committee asks that the Government supply information about the application of this provision in practice, including information about any prosecutions, convictions and sentences under the various subclauses of section 301 of the Penal Code, so as to assure the Committee that the expression of political views or views ideologically opposed to the established political, social or economic system are not sanctioned with penalties that involve the use of forced or compulsory labour.

In its previous observation, the Committee noted that the amendment introduced in section 312 of the Penal Code 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, required further clarification. In its latest report the Government indicates that the new Penal Code replaced section 312 with sections 215–218. The Committee notes that, under section 215, a person who “praises a crime or a criminal” is liable to a sentence of imprisonment of up to two years; that under section 216 a person who “deliberately incites one section of the population to hatred and hostility against another through discrimination based on race, region, or religion, shall be liable to a sentence of imprisonment of one to three years”; and that under section 217 a person who commits the crime of “inciting people to disobey laws” is liable to a term of imprisonment of six months to two years. The Committee asks that the Government supply information about the application in practice of sections 215–217 of the new Penal Code, including information about any prosecutions, convictions and sentences under these provisions and copies of court decisions which construe and define their scope, so as to enable the Committee to ascertain whether they are applied in a manner compatible with the Convention.

In its previous observation, the Committee noted with regard to section 8 of the “Act on the Fight against Terrorism”, No. 3713 of 1991, that, by virtue of Act No. 4744 of 6 February 2002, a penalty of imprisonment in this section was replaced with fines, and it requested 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 notes that, in June 2006, the Grand National Assembly adopted amendments to the Act. The Committee asks that in its next report the Government clarify the provision for penalties in section 8 as earlier requested. It also requests the Government to provide a copy of the 2006 amendments to the Act, including the relevant penalty provisions, and to supply updated information relating to the application in practice of the Act, as amended, including copies of all relevant court decisions and information about prosecutions, convictions and sentencing outcomes.

The Committee has previously referred to provisions of the 1965 Act concerning political parties, which prohibits 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) could be imposed under sections 80–82, read in conjunction with section 117, of the Political Parties Act (No. 2820 of 1983) and sections 5 and 76 of the Associations Act (No. 2908 of 1983). In its previous observation the Committee noted the Government’s indication in its 2003 report that changes were to be made in the Political Parties Act, in accordance with the Emergency Action Plan published on 3 January 2003, with a view to ensuring that the whole population would be able to participate in political parties and to make possible the establishment of equity and justice in political representation.

The Committee notes the Government’s indication in its 2005 report that the penalties applicable to prohibited activities under sections 80–82 have been “re-regulated” under the new Penal Code, Act No. 5237 of 2004. It further notes the Government’s indication that the new Associations Act, No. 5253, no longer includes provisions corresponding to sections 5 and 76 of the former Act. The Committee asks the Government in its next report to indicate the specific provisions of the new Penal Code which it states “re-regulate” sections 80–82 of the Political Parties Act. The Committee defers its comments on the new Associations Act pending a translation of the text of that Act.

Article 1(b). Use of conscripts for purposes of economic development. The Committee has previously noted, among other provisions, that section 10 of the Military Service Act, No. 1111, as amended by Act No. 3358, as well as section 5 of Council of Ministers resolution No. 87/11945 of 12 July 1987, adopted pursuant to section 10 of Act No. 1111, lay down procedures relating to the surplus reserves, including the procedures concerning the persons liable to perform military service who are assigned duties in public bodies and institutions. In its 2003 report, the Government confirmed 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. The Committee in previous comments asked that necessary measures 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 provide information on the progress made in this regard.

The Committee notes the Government’s reply on this point in both its 2005 reports on the application of Conventions Nos 105 and 29. The Government indicates that a new draft Military Service Bill that would bring Military Service Act No. 1111 into conformity with “current conditions” has been examined by special expert committees of the Turkish Grand National Assembly, and that it further indicates that the Bill has been drawn up in a way that embodies a policy of protecting persons conscripted into military service from being assigned duties in public bodies or undertakings without their consent. The Committee requests the Government to keep the ILO informed about the progress of the above Bill. The Committee reiterates its hope that the necessary measures will at last be taken with a view to repealing the provisions referred to above 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. In its earlier comments the Committee noted that, 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, and that, 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.

The Committee notes the Government’s indication that a draft Turkish Trade Act, which has the aim of bringing sections 1467 and 1469 of the Commercial Code into conformity with the Convention, is now under elaboration in the specialized committees of the Parliament, and that, once the Bill is adopted, the Government will supply copies of the text of the new legislation. The Committee reiterates its hope that the Government will very soon be in a position to report the progress achieved in this matter.

Article 1(d). Punishment for participation in strikes. The Committee has previously noted that Act No. 2822 of 1983, respecting collective labour agreements, strikes and lockouts, 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, in circumstances not limited in scope to those described in paragraphs 182–189 of its 2007 General Survey on the eradication of forced labour. The Government indicated in its 2003 report that a tripartite “Science Board”, established with the objective of bringing Act No. 2822 into conformity with relevant ILO Conventions, had completed its work and submitted its report for consideration by the social partners. The Committee refers the Government to its comments on this point under the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and expresses the firm hope that amendments to Act No. 2822 addressing the Committee’s concerns under both Conventions will be adopted without further delay.