Rapport intérimaire - Rapport No. 338, Novembre 2005

1284. The complaint is contained in a communication from the Confederation of Public Employees’ Trade Unions (KESK) dated 9 July 2004. In a communication dated 1 September 2005, Education International associated itself with this case and provided additional information.

1. 1285. The Government replied in communications dated 30 September 2004, and 6 January, 29 March, 15 April and 25 July 2005.
2. 1286. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 1287. In a communication dated 9 July 2004, KESK states that on 10 June 2004, the Attorney-General of Ankara filed a lawsuit against the Trade Union of Public Servants in the Education Branch (Egitim Sen), which is a KESK affiliate, to dissolve the union in accordance with Articles 3 and 42 of the national Constitution and sections 20 and 37 of the Public Employees’ Trade Unions Act No. 4688. The reason for the lawsuit was that one of the articles of Egitim Sen’s statutes (section 2(b)) provided that “Egitim Sen has as its purpose the defence of democratic, secular, scientific and free education and the right of all citizens to education in their mother tongue and the development of their culture in accordance with their fundamental human rights and freedoms”.
2. 1288. According to KESK, Article 3 of the national Constitution provides that: “The Turkish State constitutes, along with its territory and nation, an indivisible entity.” Article 42 of the national Constitution provides that: “No language other than Turkish shall be taught to the Turkish citizens as a mother tongue or serve in order to give courses in any training or educational establishment. Foreign languages to be taught in training and educational establishments and the rules to be followed by schools providing training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved.” Moreover, section 20 of Act No. 4688 provides that: “The administration and organs of trade unions and their confederations established according to this law shall not act contrary to the characteristics of the Republic and democratic principles.” Section 37 of the same Act provides that: “The trade unions and their confederations that act contrary to the characteristics of the Republic and the democratic principles entrenched in the Constitution will be closed down at the request of the Attorney-General of the city in which they have their central office.” Finally, section 6 of Act No. 4688 provides that, in the event of a determination that the law is violated or the conditions prescribed in the law have not been complied with, the responsible governorship will demand the trade union concerned to rectify the omissions within one month; otherwise, it will apply to the competent labour court to ban the trade union’s activities. The court in such a case will give 60 days to the trade union to rectify the omissions. If the statutes and documents are not changed in accordance with the law at the end of 60 days, the court will decide to dissolve the trade union.
3. 1289. According to KESK, it was obvious from the above that to bring a lawsuit against a trade union or a confederation to dissolve a trade union might only be possible when the union had acted contrary to the Republic and the democratic principles cited in the Constitution. However, the reason indicated by the Attorney-General for requesting the dissolution was simply that Egitim Sen had not changed an article in its statutes. For this reason, the lawsuit was not in conformity with section 37 of Act No. 4688. The procedure indicated in section 6 of Act No. 4688 should apply instead.
4. 1290. KESK added that section 2(b) of the statutes of Egitim Sen defended the right to education in one’s mother tongue and the development of one’s culture in a very democratic spirit which was in conformity with the Republic’s laws. The Governorship of Ankara had already requested the Attorney-General to take the necessary measures for the trade union’s dissolution on 29 March 2002, but the Attorney-General had found no ground for legal action. The Ministry of Labour and Social Security had reported that the statutes were compatible with the law and the Constitution. In addition, since that date, many laws and regulations had been changed in Turkey and by virtue of section 11 of Act No. 4771, published in the Official Gazette on 9 August 2002, the possibility for Turkish citizens to learn different spoken languages and dialects had been rendered lawful. The United Nations International Covenant on Economic, Social and Cultural Rights had been ratified by the National Assembly and Article 90 of the national Constitution had been amended so that, in the event of a contradiction between ratified international Conventions and national law, the international Conventions would prevail. Finally, by virtue of regulations issued on 15 December 2003 concerning the possibilities for Turkish citizens to learn different languages and dialects which used to be spoken in daily life, it had been made possible to learn and develop different languages. Egitim Sen’s statutes were therefore clearly compatible with the law.
5. 1291. KESK concluded that, although there remained no legal obstacle to defending the right to education in one’s mother tongue in Turkey, bringing an unfounded lawsuit against Egitim Sen and its leadership was a violation of freedom of association principles, Article 3 of Convention No. 87 and Article 5(2) of Convention No. 151.
6. 1292. In a communication dated 1 September 2005, Education International indicated that, on 25 May, the Turkish Supreme Court had ordered that Egitim Sen should be dissolved. On 3 July, during an Egitim Sen extraordinary congress, it was decided to remove from the union’s statutes the article which motivated the Supreme Court’s verdict. Thus Egitim Sen believed that there was no longer any legal ground to close down the union and the court case should be closed. However, the threat that Egitim Sen might be dissolved persisted as the Industrial Court had to issue a decision based on the final ruling of the Supreme Court by the end of August 2005.
7. B. The Government’s reply
8. 1293. In a communication dated 30 September 2004 the Government indicated that in Turkey the rights of public employees to organize and bargain collectively were regulated by the provisions of the Public Employees’ Trade Unions Act No. 4688 of 25 June 2001, which reflected the principles set forth in Conventions Nos. 87, 98 and 151. KESK’s allegations on behalf of its affiliate, the Trade Union of Public Servants in the Education Branch (Egitim Sen), concerned legal procedures established by Act No. 4688 for violations of the Act’s provisions. These violations were to be determined at the time of establishment of trade unions by the competent governorships in accordance with section 6 of the Act.
9. 1294. The Government further indicated that the lawsuit filed on 10 June 2004 for the dissolution of Egitim Sen (File No. 2004/833), was dismissed after a hearing dated 15 September 2004 by the Second Industrial Court of Ankara (Decision No. 2004/752).
10. 1295. In a communication dated 6 January 2005, the Government added that the decision of the Second Industrial Court of Ankara rejecting the lawsuit was appealed before the 9th Chamber of the Supreme Court of Appeal which quashed the initial ruling in a decision of 3 November 2004 (No. 2004/24792).
11. 1296. In its communications dated 29 March and 15 April 2005, the Government transmitted the above decisions of the Second Industrial Court of Ankara and the 9th Chamber of the Supreme Court of Appeal. The Government added that, during the re-hearing of the case on 21 February 2005, the Second Industrial Court of Ankara confirmed its initial decision to reject the request for dissolution. When this decision confirming the initial judgement was issued, the file would be sent to the General Assembly of the Legal Chamber of the Supreme Court of Appeal for a final verdict.
12. 1297. In a communication dated 25 July 2005, the Government indicated that, on 25 May 2005, the General Assembly of the Legal Chamber of the Supreme Court of Appeals quashed, once again, the second decision of the Second Industrial Court of Ankara on the grounds stated previously by the 9th Chamber of the Supreme Court of Appeals. This final ruling had been taken unanimously but with differing reasons which had not been published yet. The Government added that Egitim Sen sent a communication to the Ministry of Labour and Social Security on 6 July 2005 submitting its statutes of which paragraph (b) of article 2 entitled “union objectives” had been amended so as to delete the term “education in mother tongue”. The Government appended the amended version of the statutes.

C. The Committee’s conclusions

1. 1298. The Committee observes that this case concerns allegations that the Attorney-General of Ankara filed a lawsuit on 10 June 2004 under section 37 of the Public Employees’ Trade Unions Act No. 4688 (which provides that “every union or confederation that carries out activities against the characteristics of the State set out in the Constitution or democratic principles shall be ordered to go into liquidation by the local labour court at the request of the public prosecutor”), requesting the courts to order the dissolution of the Trade Union of Public Servants in the Education Branch (Egitim Sen), because its statutes provided as one of the trade union’s purposes the defence of “the right of all citizens to education in their mother tongue and the development of their culture”, which was contrary, according to the Attorney-General, to constitutional and legislative provisions prohibiting the teaching of any language other than Turkish as mother tongue, and Article 3 of the national Constitution which provides that the Turkish State, along with its nation and territory, constitutes an indivisible entity.
2. 1299. The Committee notes from the text of the court decisions transmitted by the Government, that the court of first instance (Second Industrial Court of Ankara) rejected the request to order the dissolution of Egitim Sen on the ground that the disputed provision in its statutes did not constitute a risk for the unity of the nation and the territory of the Republic and that this provision was not contrary to articles 10 and 11 of the European Convention on Human Rights concerning, respectively, the right to freedom of expression, to hold opinions and to receive and impart information and ideas without interference by public authority; and the right to freedom of peaceful assembly and to freedom of association, including the right to form and join trade unions for the protection of one’s interests.
3. 1300. The Committee further notes that the 9th Chamber of the Supreme Court of Appeals decided to quash the decision of the court of first instance, finding that the expression at issue ran against necessary precautions aimed at avoiding any expression against the State’s unity and was contrary to articles 3 and 42(6) of the Constitution, as well as section 20 of Act No. 4688; thus, the Supreme Court found that Egitim Sen should be dissolved in conformity with section 37 of Act No. 4688. The Supreme Court of Appeals based its decision on the following grounds: (i) section 3(f) of Act No. 4688 defined a trade union as an institution vested with legal personality and having as an aim the defence and development of the social, economic and professional rights and interests of civil servants; the purposes of Egitim Sen exceeded those mentioned in section 3(f) of Act No. 4688 to the extent that they included “the right of all citizens to education in their mother tongue and the development of their culture”; a trade union should have as its unique purpose the defence of the common social and economic interests of its members and the insistence with which Egitim Sen had refused to modify its statutes was reason for suspicion and proved that this trade union exercised activities falling outside the normal purposes of a trade union; (ii) this provision in the statute of Egitim Sen was contrary to article 42 of the national Constitution and section 2 of Acts Nos. 2925 and 4771 (as amended), all of which provided that no language other than Turkish could be taught to Turkish citizens as a mother tongue or serve to give courses in training and educational establishments, as well as article 3 of the national Constitution which provided that “the Turkish State constitutes, along with its territory and nation, an indivisible entity”; these constitutional and legislative provisions constituted according to the Supreme Court of Appeals, necessary precautions in a democratic society for the defence of national security, public safety and order; they aimed at avoiding any expression against the State’s unity. On 21 February 2005, the Second Industrial Court of Ankara upon remand confirmed its earlier decision rejecting the request for dissolution. Finally, on 25 May 2005, upon appeal for the second time, the General Assembly of the Legal Chamber of the Supreme Court of Appeals confirmed its previous decision and quashed, once again, the decision of the court of first instance, on the grounds previously stated by the 9th Chamber of the Supreme Court of Appeals.
4. 1301. The Committee further notes from the information provided by the Government that, in a communication dated 6 July 2005, Egitim Sen informed the Ministry of Labour and Social Security that its statutes had been amended so as to delete the term “education in mother tongue”.
5. 1302. Observing that Egitim Sen complied with the final decision of the Supreme Court, the Committee also notes the complaint’s allegation that the statutes of Egitim Sen, including the reference to education in one’s mother tongue, were clearly compatible with the law and the request to order its dissolution was unfounded and contrary to section 37 of Act No. 4688 for the following reasons: (i) Egitim Sen had not actually acted against the principles of the Republic but had simply refused to amend a section of its statutes (thus, any proceedings against this trade union should be based on section 6 rather than 37 of Act No. 4688); (ii) by referring to the intention to defend citizens’ rights to education in their mother tongue and the development of their culture, section 2(b) of the statutes of Egitim Sen did not violate any law but, on the contrary, exemplified a purely democratic spirit which was in conformity with the laws of the Republic – reason for which a previous request by the Ankara Governorship to order the dissolution of this trade union had been rejected by the Attorney-General in 2002; (iii) moreover, since that date, many laws and regulations had been changed in Turkey and, by virtue of section 11 of Act No. 4771 of 2002, Turkish citizens now had the possibility to lawfully learn different spoken languages and dialects. In particular, by virtue of the regulations issued on 15 December 2003 concerning possibilities for Turkish citizens to learn different languages and dialects which used to be spoken in daily life, it had been made possible to learn and develop different languages.
6. 1303. The Committee emphasizes that measures of dissolution of a trade union, given in particular the serious consequences involved for the occupational representation of workers, should be applied with the greatest caution and only where serious acts have been duly proven. The Committee takes note of Egitim Sen’s concern that it might be dissolved, even though it had taken steps to delete the article of its statutes that was at issue, and trusts that this will not be the case. It requests the Government to inform it of the current status of Egitim Sen.
7. 1304. The Committee also requests the Government to provide additional information regarding the contradictions between the Egitim Sen statutes and the national Constitution and any impact that the final court decision might have on freedom of association.