Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Türkiye (Ratification: 1967)

Autre commentaire sur C111

Observation

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The Committee notes the observations from the Confederation of Public Employees Trade Unions (KESK), received on 1 September 2021 and the Government’s reply thereto received on 19 November 2021. The Committee also notes the observations of the Turkish Confederation of Employer Associations (TİSK) received on 7 September 2021. Furthermore, The Committee notes that the observations of the Confederation of Turkish Trade Unions (TÜRK-IS) transmitted by the Government with its report are identical to those communicated with its previous report, which were addressed in the Committee’s 2019 comments.

Articles 1 and 4 of the Convention. Discrimination based on political opinion. Activities prejudicial to the security of the State. The Committee notes that, in reply to its request regarding the practical application of the Anti-Terrorism Act and the Penal Code in cases involving journalists, writers and publishers, the Government merely refers to the existing legal provisions guaranteeing protection against anti-union discrimination in the Constitution, the Penal Code and the labour legislation. According to the Government, there is no restriction or prohibition on the use of trade union rights and the detention and conviction by a court of some unionists should not be associated with their trade union activities. The Government adds that judicial proceedings are carried out within the framework of human rights and that it continues to fight effectively and decisively against terrorist organizations threatening national security and public order, targeting the safety of life and property of its citizens. The Committee notes this information but also notes that the Government does not reply to its previous comment. While fully understanding the need for measures to protect the security of the State and recalling that they exist in almost all countries, the Committee is concerned that, depending on their application in practice, such measures could be used to limit the protection which the Convention seeks to guarantee against discrimination based on political opinion. Therefore, the Committee firmly urges once again the Government to provide information on the cases brought before the courts against journalists, writers and publishers under the Anti-Terrorism Act and the Penal Code, indicating the number of cases and the charges brought as well as their outcome. The Committee asks the Government to indicate how it is ensured that the application in practice of the Anti-Terrorism Act and the Penal Code in cases involving such workers does not lead to discrimination based on political opinion.

Article 1(1)(a). Discrimination based on political opinion. Public Sector. Recruitment procedure. Oral exams and security investigations. The Committee notes that the KESK, in its 2021 observations, reiterates the serious concerns about the discrimination based on political opinion raised in its previous observations and reaffirms that there is a broad and vague interpretation of the Turkish Penal Code and the Anti-Terror Law as regards the recruitment of new public officers and the working life of public officers. The KESK also: (1) reiterates concern regarding the impartiality, neutrality and independency of those who serve in committees in charge of making decisions about new public officers’ suitability for employment into the public sector, since the introduction of an oral interview phase; (2) alleges that oral exams are used to select those who are loyal to the Government rather than eligible for public services, and security investigations and archive screening (that are extended to family members) are used to block those who are not deemed suitable for public services; (3) indicates that until 2016, there were only a few professions which fell into the category of sensitive and high-level positions that required extra measures namely security investigations and archive screening; and (4) underlines that following the State of Emergency, these extra security measures have been applied to all sectors and dozens of people were not recruited on the ground that there was a judicial investigation against them in the past, even if they were acquitted. The Committee regrets to note that the Government’s report does not contain information on the adoption and entry into force of any new legislation, further to the annulment of the regulation on “security investigation” and “archive screening” by the Constitutional Court. The Committee asks the Government to ensure that, during recruitment in the public sector, any new legislation providing for security investigation and oral exams does not lead to discrimination based on the grounds set out in the Convention, in particular discrimination based on political opinion. It also asks the Government to: (i) describe any new procedures of “security investigation” and “archive screening” put in place by law; and (ii) ensure that persons alleging discrimination in recruitment and selection in the public sector have effective access in practice to adequate and timely procedures for a review of their case and to appropriate remedies.

Duties of loyalty, impartiality and neutrality. The Committee notes that, in its report, the Government emphasizes that, according to section 7 of the Civil Servants Law No. 657 on “Impartiality and Loyalty to the State”, civil servants shall not become affiliated to political parties, or conduct themselves in any manner aimed at providing advantage or disadvantage for any political party, person or group, and they shall not under any circumstances make any declarations and pursue a course of action with political and ideological aims or participate in such actions. It adds that civil servants are, in all cases, obligated to protect the benefits of the State and shall not perform any activities which are contrary to the Constitution and the national laws, which prejudice the integrity and independence of the country, and which endanger the security of the Republic of Türkiye. The Committee recalls that, in accordance with Article 1(1)(a) of the Convention, discrimination based on political opinion is prohibited. The protection of political opinion applies to opinions which are either expressed or demonstrated but does not apply where violent methods are used. Furthermore, not all distinctions, exclusions and preferences are deemed to be discrimination within the meaning of the Convention, such as measures warranted by the security of the State under Article 4 as mentioned above or inherent requirements of a particular job under Article 1(2). The Committee recalls that it is essential that such restrictions are not carried beyond certain limits, evaluated on a case-by-case basis, and in this regard, it refers the Government to paragraphs 801, 805 and 831 of its 2012 General Survey on the fundamental Conventions. In light of the above, the Committee asks the Government to consider: (i) defining further the duties of impartiality and loyalty of civil servants and limiting the restrictions regarding political activities to determined positions, thereby establishing clear rules of conduct, for instance through the adoption of a code of conduct in consultation with civil servants’ organizations; and (ii) adopting a limited list of jobs in the civil service for which political opinion would be considered an inherent requirement.

Massive dismissals: Civil servants, teachers and members of the judiciary. With regard to its previous comments, the Committee notes that the Government refers once again in detail to the legal framework applicable to the dismissals during the state of emergency and the appeal procedure against such decisions. With respect to the appeals lodged and examined by the Inquiry Commission on the State of Emergency Measures set up in 2017, the Committee notes the following information from its website to which the Government refers in its report: (1) by the decree-laws issued within the scope of the state of emergency, a total of 131,922 measures were taken, 125,678 of which were dismissal from public service; (2) the number of applications submitted to the Inquiry Commission was 126,783 as of 31 December 2021; (3) 120,703 decisions were delivered by the Commission and the number of pending applications was 6,080; (4) among the 120,703 decisions delivered between 22 December 2017 and 31 December 2021, 16,060 were accepted (61 of which were related to the opening of organizations that were shut down such as associations, foundations and television channels) and 104,643 were rejected; and (5) a total of 95 per cent of the applications have been decided. The Government further indicates that: (1) the applicants can acquire information on the stage of the applications filed with the Inquiry Commission and the outcome of the decision (“acceptance” or “rejection”) through a dedicated App; (2) the Inquiry Commission delivers individualized and reasoned decisions as a result of the speedy and extensive examination; and (3) out of the 33.956 staff members of the Ministry of National Education who were dismissed from public service pursuant to the emergency decree-laws, 4.360 persons were reinstated into the public service.

The Committee also notes the allegations made by the KESK according to which, although the state of emergency was lifted on 19 July 2018, there are still practices that amount to de factostate of emergency and even martial law in some provinces and in certain periods. The KESK also recalls that there were 4,267 KESK members among these dismissed public employees and although almost 5 years passed, there were still 2,630 pending cases concerning KESK members to be examined by the Inquiry Commission, as of 28 May 2021. The KESK therefore alleges that there is a deliberate delay in examining the applications of its members and reaffirms that the examination by the Commission is not based on clear criteria. The Committee notes the Government’s reply that KESK’s opinion about the Inquiry Commission (that it is not a competent legal body and not an effective remedy) is biased and unfounded and reiterates that the Commission conducts the examination in terms of membership, affiliation, connection or contact with terrorist organizations or structures/entities or groups established by the National Security Council as engaging in activities against the national security of the State. It also indicates that decisions taken by the judicial authorities are monitored through the UYAP (e-Justice) System.

The Committee asks the Government to ensure that the review mechanism (the Inquiry Commission) continues its work in a timely and effective manner on the basis of clear, fair and transparent criteria. The Committee asks the Government: (i) to continue to provide information on the total number of appeals reviewed by the Inquiry Commission or by the courts, and their outcome; (ii) to indicate whether during the proceedings, dismissed employees have the right to present their cases in person or through a representative; and (iii) to provide its comments regarding the KESK’s allegations on the length of the reviews concerning its members.

Articles 2 and 3. Non-discrimination and equality between men and women. Vocational education and training and employment. The Committee welcomes the detailed statistics provided by the Government regarding the representation of women in professions requiring expertise and the number of women who benefited from active labour force and training programmes from 2002 to the end of March 2021. The Committee notes the Government’s indication that significant increases were recorded in female labour force participation and female employment rates between 2002 and 2019 and that several schemes and programmes were put in place to encourage the participation of women in training and employment, such as the “Additional Employment Incentive”, the “Child Care Support”, the “Mother at Work Project”, the “Jobs Clubs” counselling programme, and the “Half Work Allowance” to reconcile work and family responsibilities. The Government refers once again to the Strategy Document and Action Plan on Women’s Empowerment (2018–2023) and its objectives, such as addressing gender occupational segregation. It also indicates that Phase II of the More and Better Jobs for Women Programme (2019–2022), funded by the Swedish International Development Cooperation Agency (SIDA) and implemented in collaboration with the ILO Office for Türkiye: (1) focuses on selected sectors including textiles, commerce and office, food, general services, domestic workers and home workers; and (2) addresses the prevention of violence and harassment in the world of work, the gender pay gap, work–life balance and women’s leadership. Under the Program, it is envisaged to organize training, revise and implement the Women’s Employment Action Plan, conduct an analysis to identify the obstacles to women’s employment and provide business development training and support women entrepreneurs. The Committee notes that the KESK reiterates its observations regarding the decrease in women labour force participation and the “objective of the Government to keep women away from public, social, economic and professional life”. The KESK also underlines that the withdrawal of Türkiye from the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), on 1 July 2021, is an extremely serious issue for women employees. In its response to the KESK’s observations, the Government reiterated the information provided on the various programmes aiming at increasing women’s employment as well as provided new information on the “Operation for the Empowerment of Women through Cooperatives” that started in September 2021. Noting all this information, the Committee observes however that the participation of women to the labour force decreased from 34.4 per cent in 2019 to 30.8 per cent in 2020 (ILOSTAT) and remained significantly low in comparison to 68.2 per cent for men. The Committee asks the Government to continue taking specific proactive measures to: (i) promote the effective access of women to adequate education and vocational training and to formal and paid employment, including higher level positions; (ii) enable both men and women to reconcile work and family responsibilities, including through the development of childcare and family facilities and support; and (iii) ensure that the results of the various programmes and projects aimed at empowering women and increasing their participation in education, vocational training and formal employment are effectively monitored, assessed and adjusted, if necessary.

The Committee reiterates its request to the Government to take and implement measures to combat persistent gender stereotypes, for example through awareness-raising and information campaigns, in cooperation with the social partners, and provide information in this regard. The Committee also asks the Government to provide information on: (i) the findings of any studies assessing the legislative framework and the practical obstacles concerning women’s employment; (ii) the impact of the COVID-19 pandemic on women’s participation to the labour force; and (iii) any corrective measures envisaged or adopted.

The Committee asks once again the Government to provide its comments regarding the alleged dismissal or threats of dismissal of pregnant women because of their pregnancy or enjoyment of full maternity leave, and any impact of the childcare leave on women’s employment.

The Committee is raising other matters in a request addressed directly to the Government.