Observation (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Repetition

Article 1(a) of the Convention. Political coercion and punishment for holding or expressing views opposed to the established system. 1. The Penal Code. The Committee 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 the decision of the Council of Ministers of 5 July 1967, No. 6/8517, as amended) may be imposed under section 301 of the Penal Code. Section 301(1) and (2) of the Penal Code (as amended by Law No. 5759 of 30 April 2008) penalizes denigrating the Turkish Nation, the State of the Republic of Turkey, the Grand National Assembly of Turkey, the Government of the Republic of Turkey as well as the judicial bodies, the military and the security structures of the State, with imprisonment of a term of between six months and two years. The Committee noted that section 301(3), as amended, stated that the expression of ideas in the form of criticism shall not be punished. The Committee requested information on the application of section 301 of the Penal Code in practice.

The Committee notes that section 301(4) of the Penal Code, as amended, specifies that prosecution under this section shall be subject to the approval of the Minister of Justice. In this regard, the Committee notes the information in the Government’s report that between May 2008 and March 2011, a total of 1,570 files were received by the Ministry of Justice from the Office of the Chief Public Prosecutor pursuant to section 301 of the Penal Code. Approval was given to investigate only 5.8 per cent of the files submitted; 1,382 files were not approved for investigation, and permission was granted to investigate 88 files. Of these files, 30 pertained to actions committed through the press, while 58 related to offences of “flagrant contempt”. Of these 88 files investigated, 49 files (involving 62 suspects) have been concluded, and a total of 34 persons were convicted pursuant to section 301, and 28 persons were sentenced to imprisonment. The Government states that the number of investigations permitted by the Minister of Justice pursuant to section 301 has declined significantly, and that this provision is not being used systematically for restricting freedom of expression, including freedom of the press.

The Committee notes the statement of the Turkish Confederation of Employer Associations (TİSK), in its observations of 2011, that the amendment of section 301, to require the permission of the Minister of Justice for investigations, resulted in a fall in the number of cases under this section. In the first seven months of 2010, only 3.57 per cent of the files submitted were allowed an investigation. The Committee also notes the statement of the UN country team, in a report prepared by the High Commissioner of Human Rights for the Universal Periodic Review of 19 February 2010, that section 301 of the Criminal Code is no longer used systematically to restrict freedom of expression, and that the amendment to this section led to a significant decline in prosecutions in comparison with previous years (A/HRC/WG.6/8/TUR/2, paragraph 46). Taking due note of the information provided by the Government, the Committee requests the Government to continue to provide information on the application of section 301 of the Penal Code in practice, including the number and nature of offences, particularly relating to the cases where sentences of imprisonment have been imposed.

2. Act on the Fight against Terrorism. The Committee previously noted that section 8 of the Act on the Fight against Terrorism (No. 3713 of 1991) prohibited propaganda against the indivisibility of the State. However, it also noted that this legislation had been amended in 2006, and requested information on these amendments.

The Committee notes the Government’s indication that Act No. 3713 was amended in 2006 by Act No. 5532. It notes that, pursuant to these amendments, section 8 of Act No. 3713 was replaced, and this section now relates to the financing of terrorism. However, the Committee also notes that section 6(2) of Act No. 3713, as amended, provides that printing or publishing declarations or leaflets emanating from terrorist organizations is punishable by a term of imprisonment from one to three years (previously a monetary fine). If such an offence is committed via print media, section 6(4) provides for imprisonment of the owners (ranging from 1,000 to 10,000 days) and editors (up to 5,000 days) of press or other media, even if they have not personally participated in the commission of this offence. Moreover, section 7(2) of Act No. 3713 provides for a term of imprisonment from one to five years for propaganda in favour of a terrorist organization. This penalty is increased by half if committed through the press, and the owner and editor of the periodical are liable for imprisonment of between 1,000 days to 10,000 days.

In this connection, the Committee recalls that limitations may be imposed by law on individual rights and freedoms in order to ensure respect of the rights and freedoms of others and to meet the requirements of public order and the general welfare in a democratic society, and the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. However, the Committee wishes to emphasize that if such restrictions are formulated in such wide and general terms that they may lead to penalties involving compulsory labour as punishment for the peaceful expression of views or of opposition to the established political, social or economic system, such penalties are not in conformity with the Convention. The Committee therefore requests the Government to take the necessary measures to ensure that no prison sentence entailing compulsory labour can be imposed under Act No. 3713 on persons who, without using or advocating violence, express certain political views or opposition to the established political, social or economic system. In this regard, it requests the Government to provide information in its next report on the application in practice of sections 6(2), 6(4) and 7(2) of Act No. 3713, as amended, including information concerning prosecutions, convictions and the specific penalties applied.

3. Political Parties Act. The Committee previously noted that penalties of imprisonment (involving compulsory labour) can be imposed under sections 80–82, read in conjunction with section 117, of the Political Parties Act (No. 2820 of 1983), which prohibits political parties from seeking to alter the principle of the unity of the State, asserting the existence of minorities based on a national or religious culture or on racial or linguistic differences, seeking to form minorities by protecting and promoting languages and cultures other than the Turkish language and culture, using any language other than Turkish in the drafting and publication of parties’ statutes and programmes, or advocating regionalism. The Committee subsequently noted the Government’s indication 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 statement that section 83 of the Political Parties Act prohibits political parties from promoting regionalism or racism in the country. The Committee also notes the Government’s reference to several provisions of the Penal Code, including section 122 of the Penal Code which prohibits discrimination against persons in commercial activities, public services and economic activity. The Committee observes that these provisions do not directly relate to the application of the Political Parties Act. Referring to paragraph 307 of its General Survey of 2012 on the fundamental Conventions concerning rights at work, the Committee recalls that the prohibition of political views as a consequence of the prohibition of political parties or associations (subject to penalties involving compulsory labour) are not in conformity with the Convention. The Committee therefore requests the Government to take the necessary measures to repeal or amend sections 80–82 of the Political Parties Act to ensure that penalties of imprisonment (involving compulsory labour) cannot be imposed for having expressed political views as a consequence of the prohibition of political parties or associations. Pending the adoption of such an amendment, the Committee requests the Government to provide information on the application of these provisions in practice.

Article 1(b). Use of conscripts for purposes of economic development. The Committee previously noted 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 procedures concerning persons liable to perform military service who are assigned duties in public bodies and institutions. The Committee subsequently noted the Government’s statement that Act No. 3358, which amended section 10 of the Military Service Act, No. 1111, was no longer applied after 1991. Moreover, the Committee noted the Government’s indication that a new draft Military Service Bill, aimed at bringing legislation into conformity with “current conditions” had been examined by a special expert committee of the Turkish Grand National Assembly. The Government indicated, in particular, that the Bill had been drawn up in a way to embody a policy of protecting persons conscripted into military service from being assigned duties in public bodies or undertakings without their consent. The Committee requested the Government to provide information on the adoption of this Bill.

The Committee notes the Government’s statement that the Bill to amend the Military Service Act, No. 1111, was submitted to the Turkish Grand National Assembly in 2008, but was not discussed during this legislative term. However, the Government also states that persons working for the Ministry of National Defence are employed under service contracts. The Committee therefore requests the Government to strengthen its efforts to ensure the amendment of the Military Service Act, No. 1111, to bring it into conformity with the Convention and the indicated practice.

Article 1(d). Punishment for participation in strikes. The Committee previously noted that Act No. 2822 of 1983 on collective agreements, strikes and lockouts, pursuant to sections 70–72, 75, 77 and 79, provides for penalties of imprisonment (involving compulsory labour) as a punishment for participation in unlawful strikes, in circumstances falling within the scope of Article 1(d) of the Convention. It expressed the firm hope that Act No. 2822 would be amended. The Committee notes the Government’s statement that negotiations with the social partners are ongoing with regard to the amendment of Act No. 2822. The Government states that amending this Act is one of the Government’s priorities. Referring to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee requests the Government to take the necessary measures to ensure that Act No. 2822 is amended so that it does not contain any penal sanctions involving compulsory labour as a punishment for the peaceful participation in strikes.