Rapport intérimaire - Rapport No. 375, Juin 2015

1. 532. The complaint is contained in a communication from the Turkish Motor Workers’ Union (TÜMTIS), the International Transport Workers’ Federation (ITF) and the International Trade Union Confederation (ITUC) dated 7 August 2014.
2. 533. The Government sent its observations in a communication dated 12 February 2015.
3. 534. Turkey has ratified Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 535. In their communication dated 7 August 2014, the complainant organizations – TÜMTIS, ITF and ITUC – allege illegal arrests, detentions and prosecution of several trade union leaders for engaging in trade union activities and abusive use of criminal law to suppress independent trade unionism.
2. 536. By way of background, the complainants explain that TÜMTIS was founded in 1949 and currently has branches in Istanbul, Bursa, Ankara, Izmir, Adana, Gazientep, Samsun and Mersin. It is affiliated nationally to TÜRK-IS and internationally to the ITF. TÜMTIS affiliates transport and logistics workers in major companies. In 2005, TÜMTIS launched an organizing campaign at Horoz Cargo, a large transportation company (hereinafter, “the company”). As a result of the successful organizing campaign, a considerable number of new members have joined TÜMTIS. In Ankara, the company responded to this development by dismissing six workers, allegedly on grounds of redundancy. Supported by TÜMTIS, the dismissed workers challenged their dismissals in the Ankara Labour Court. The Court ruled that the workers were unfairly dismissed and ordered their reinstatement. On 24 April 2007, following the reinstatement orders, the company filed a complaint with the chief prosecutor of Turkey against several officials and members of the TÜMTIS Ankara branch. On 20 November 2007, the following 17 TÜMTIS Ankara branch officials and members were arrested following raids on their homes:

   • Name		Role
     Nurettin Kilicdogan		Branch President and Education Officer
     Erkan Aydogan		Member of Branch Executive Board
     Selaattin Demir		Member of Branch Executive Board
     Halil Keten		Branch Treasurer
     Binali Guney		Member of Branch Executive Board
     Huseyin Babayigit		Branch General Secretary
     Attila Yilmaz		Member of Branch Executive Board
     Candan Genc		Member
     Suleyman Demirtas		Member
     Serdal Cenikli		Member
     Cihan Ture		Member
     Ihsan Sezer		Member
     Metin Eroglu		Member
     Satilmas Ozturk		Member
     Ahmet Cenikli		Member
     Cetin Alabas		Member
     Arif Sunbul		Member

     >
3. 537. Nurettin Kilicdogan, Erkan Aydogan, Selaattin Demir, Halil Keten, Binali Guney, Huseyin Babayigit and Attila Yilmaz were taken into custody while others were released without charge. They were subjected to 15 successive hours of questioning. On 23 November 2007, the chief prosecutor obtained an order for the pre-trial detention of the seven abovementioned individuals. While the accused were informed of the charges against them, their lawyers were not permitted to review the 3,000 page file prepared by the prosecution in support of the union officials’ pre-trial detention. The defence lawyers were not given a copy of the prosecution report until four months after the initial arrests. They were left in a position where they had to file appeals against the detention order without knowing the exact charges or evidence against their clients. Assisted by TÜMTIS, the detained union leaders challenged pre-trial detention on three occasions: on 29 November 2007, 28 January 2008 and 21 February 2008, to no avail.
4. 538. On 27 March 2008, the chief prosecutor presented a bill of indictment against 15 of the 17 trade unionists and charged them with the following crimes: founding an organization for the purpose of committing crime; harming property; violating the right to peaceful work through coercion in order to obtain unfair pecuniary gain; and obstructing enjoyment of union rights.
5. 539. The first hearing took place on 6 June 2008. On that day, an international delegation led by the ITF visited Ankara to demand the release of the detained trade unionists. Affiliates of TÜRK-IS expressed their solidarity with TÜMTIS. More than 300 union members, supporters and the international delegation rallied before the hearing. A week prior to this date, an online protest campaign had been launched and gathered several thousand signatures to demand the immediate release of the trade union leaders. The Prime Minister’s Office was alarmed by these protests and requested the chief prosecutor in Ankara to meet the union prior to the first court hearing to obtain its view. The complainants believe that the international solidarity may have had an impact on the Court’s decision to release the union leaders at the first hearing, after six months of pre trial detention.
6. 540. On 2 June 2008, seven union leaders lodged a case against the Government of Turkey at the European Court of Human Rights (ECtHR) for the alleged breaches of Article 5 (Right to liberty and security) of the European Convention on Human Rights. On 8 February 2011, the ECtHR ruled in favour of the applicants and concluded that the Republic of Turkey had breached Article 5(4) and (5) of that Convention, which reads as follows:
   • …
   • 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
   • 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
7. 541. On 20 November 2012, five years after the initial arrests of TÜMTIS Ankara Branch officials and members, the 11th High Criminal Court in Ankara handed down its judgment and sentenced Nurettin Kilicdogan, Erkan Aydogan, Selaattin Demir, Halil Keten, Binali Guney, Huseyin Babayigit, Attila Yilmaz, Suleyman Demirtas, Serdal Cenikli, Ahmet Cenikli, Cihan Ture, Ihsan Sezer, Metin Eroglu, Candan Genc and Satilmas Ozturk to prison terms varying from six months to two years for founding an organization for the purpose of committing crime, violating the right to peaceful work through coercion in order to obtain unfair pecuniary gain and obstructing enjoyment of union rights. TÜMTIS appealed this decision on behalf of the defendants, but, according to the complainants, it is unclear when the hearing will be scheduled. TÜMTIS considers that the following errors in the investigation process led to the prosecution and oversights in legal procedure by the criminal court judges:
   • – The suspects’ telephones were wiretapped without a warrant and thus, the information so gathered should not have been submitted as evidence. Moreover, nothing in the telephone conversation transcripts indicate that the defendants were engaging in any unlawful activities.
   • – As a result of not having any concrete evidence against the union officials, the prosecutor (through the police) sought evidence from other logistics companies where TÜMTIS had a presence. Prior to being approached by the prosecutor, none of the interviewed companies had ever made any complaints against TÜMTIS. The case against the officials was only built after the initial petition from Horoz Cargo failed to produce any incriminating evidence.
   • – The Ankara Criminal Court relied heavily on the suspects’ previous convictions (some of which relate to legitimate trade union activities) and/or investigations, contrary to the Turkish criminal rules of procedure. Evidence was not heard from a single worker of any of the cargo companies and/or TÜMTIS members about being coerced to join the union or having their union rights violated.
   • – According to the judgment, the evidence against the defendants for allegedly founding an organisation for the purpose of committing a crime is based on the fact that TÜMTIS led organising and industrial campaigns that “increased the number of union members and thus the income of the union”.
8. 542. According to the complainants, following the prosecution against the Ankara TÜMTIS leaders, a case was opened by the Turkish national prosecutor against the TÜMTIS national office in Istanbul on charges of it being a criminal organization. A total of nine cases have been opened against TÜMTIS by the national prosecutor with a view to dissolving it.
9. 543. In 2013, a case was opened by the national prosecutor against TÜMTIS National President Kenan Ozturk and Ankara Branch President Nurettin Kilicdogan for criticizing the new labour law and allegedly holding an illegal demonstration. TÜMTIS has also received first hand evidence from a large multinational company where it has been organizing workers that the police voluntarily offered a file containing alleged TÜMTIS malpractices to the company. The complainants consider that these actions against TÜMTIS are symptomatic of the wider assault on free trade unions in Turkey and refer to a case where 72 members of the Confederation of Public Workers’ Unions (KESK) were allegedly charged and convicted under anti-terrorism laws. They also allege that following a brutal crackdown on Istanbul May Day marchers in 2013, many members of the Confederation of Progressive Trade Unions of Turkey (DİSK) have been convicted and sentenced to prison terms.
10. 544. The complainants conclude that the prosecution and conviction of TÜMTIS officials for no other reason than the exercise of legitimate trade union activity is a gross violation of freedom of association rights and basic civil liberties as enshrined in Convention No. 87 and the Resolution of 1970 concerning trade union rights and their relation to civil liberties of the International Labour Conference.

B. The Government’s reply

1. 545. In its communication dated 12 February 2015, the Government indicates that the Horoz Logistics and Cargo Services Company had terminated the employment contracts of some of its workers due to reduction of the workload. While some of these workers challenged the dismissal in labour courts, it was also alleged by the company that TÜMTIS representatives intimidated, verbally and physically attacked those present at the workplace and damaged private property. The company requested the Ministry of Labour and Social Security to take an administrative action against TÜMTIS. The Ministry requested the Labour Inspection Board to investigate these allegations. Having assessed the situation, the Board concluded that the allegations related to public safety and security and thus could not be dealt with by the Labour Inspection Board but should be transmitted to the judicial authorities.
2. 546. The company lodged a complaint to the public prosecutor of Ankara against TÜMTIS Ankara branch office representatives and members on the grounds that the union had transformed itself into a criminal syndicate for the purpose of generating economic profit. In this connection, 17 suspects were arrested, seven of whom were placed in a pre-trial detention. At the first sitting of the court in June 2008, they were released.
3. 547. At the same time, the public prosecutor of Istanbul filed a suit in the Fifth Labour Court of Istanbul to dissolve TÜMTIS pursuant to section 58 entitled “Dissolution” of now obsolete Trade Union Act No. 2821 on the grounds of “establishing a criminal syndicate for the purpose of generating economic profit through trade union”.
4. 548. The Government indicates that Article 51 of the Turkish Constitution regulates the right of employees and employers to form unions and higher organizations without prior authorization. Pursuant to this article, employees and employers have “the right to become a member of a union and to freely withdraw from membership in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations. No one shall be forced to become a member of a union or to withdraw from membership”.
5. 549. The Government further indicates that with the adoption of Trade Unions and Collective Labour Agreements Act No. 6356 on 18 October 2012, trade unions have acquired more freedoms and now enjoy more rights and better protection. All prison sentences under obsolete Acts No. 2821 (Trade Unions Act) and 2822 (Collective Labour Agreement, Strike and Lock-Out Act) were abolished under the new Act No. 6356 and replaced by administrative fines. The Government refers, in particular, to the following provisions of the new Act:
   • – Section 17, which stipulates that “Any person who completes 15 years of age and who is considered as a worker in accordance with the provisions of this Act may join a workers’ trade union … Acquisition of membership in a trade union shall be optional. No one shall be forced to be a member or not to be a member of a trade union …”.
   • – Section 19, which stipulates that “No worker or employer shall be forced to maintain as a member or resign his membership in a trade union. Any member may resign from membership in. a trade union by an application via e-State”.
   • – Section 23, according to which, “Where a union official leaves his workplace on account of being assigned as a union official in the workers’ organization, his contract of employment shall remain suspended. If the union official wishes, he may terminate the contract of employment on the date he leaves his workplace without complying with tire notification period or without waiting for the expiry of the contract and shall be entitled to receive severance payment”.
   • – Section 24, which provides for the protections of shop stewards: “An employer shall not terminate the employment contract of shop stewards unless there is a just cause for termination and he/she indicates this clearly and precisely. … If the court decides that the trade union representative is to be reinstated in his/her employment, the termination shall be annulled and the employer shall pay his/her full wages and all other benefits between the termination and final decision date …”.
   • – Section 25, according to which “The recruitment of workers shall not be made subject to any condition as to their joining or refraining from joining a given trade union, their remaining a member of or withdrawing from a given trade union or their membership or non-membership of a trade union … In a case brought to the court with the claim that contract of employment has been terminated because of trade union affiliation, the burden of proof to prove the reason for termination shall lie with the employer”. Furthermore, the Government indicates that in case the worker is not allowed to start work, the right to claim for union compensation is recognized.
   • – Section 78, entitled “Penal provisions”, which provides that “Any person enrolling members in violation of section 17; and any person forcing another person to maintain as a member or resign his membership in violation of Article 19 shall be liable to an administrative fine of seven hundred Turkish Liras if their acts do not constitute a crime which requires a heavier sentence”.
6. 550. The Government points out that if a trade union official commits a crime, his or her individual responsibility is then engaged and the trade union in question is protected against dissolution. It concludes by emphasizing that this case concerns prison sentences imposed by the court on 14 TÜMTIS Ankara branch office representatives and members for their criminal and not for legal trade union activities.

C. The Committee’s conclusions

1. 551. The Committee notes that the complainants in this case – TÜMTIS, ITF and ITUC – allege illegal arrests, detentions and prosecution of several trade union leaders for engaging in trade union activities and abusive use of criminal law to suppress independent trade unionism. The complainant organizations mainly refer to the following three distinct but interrelated events allegedly occurred after TÜMTIS had conducted an organizing campaign, as a result of which a considerable number of new members had joined it: (1) a six-month (23 November 2007 – 6 June 2008) pre-trial detention of seven trade union leaders (Nurettin Kilicdogan, Erkan Aydogan, Selaattin Demir, Halil Keten, Binali Guney, Huseyin Babayigit and Attila Yilmaz); (2) the sentencing, by a decision of 20 November 2012 of the 11th High Criminal Court, of 15 trade unionists (seven abovementioned leaders and eight trade union members: Suleyman Demirtas, Serdal Cenikli, Ahmet Cenikli, Cihan Ture, Ihsan Sezer, Metin Eroglu, Candan Genc and Satilmas Ozturk) to prison terms varying from six months to two years for founding an organisation for the purpose of committing crime, violating the right to peaceful work through coercion in order to obtain unfair pecuniary gain and obstructing enjoyment of union rights; and (3) subsequent actions by the national prosecutor with a view to dissolve TÜMTIS.
2. 552. With regard to the allegations relating to preventive detention of seven trade union leaders, while recalling that preventing detention should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 78], the Committee notes the 2011 judgment of the ECtHR concerning this matter in the case of Erkan Aydogan v. Turkey wherein the Court observed that, “given the nature of the offence the applicants were charged with, the length of time they spent in detention was not unreasonable in relation to the pre-trial detention of seven trade union leaders”. The Committee further notes however, that the Court held, “that there has been a violation of Article 5 §§ 4 and 5 of the (European) Convention (on Human Rights)” and that in this respect, the State was ordered to pay the applicants a compensation. The Committee therefore considers that this aspect of the case does not call for further examination.
3. 553. The Committee further notes the 2012 decision of the High Criminal Court, a copy of which was submitted by the complainant organizations, by which 14 trade unionists were found guilty of “setting up a criminal organization aiming to make gain and membership to this organization” (with the exception of Ahmet Cenikli, who was acquitted), “violating job and employment freedoms”, and “possessing an unregistered handgun” (Metin Eroglu) and have been sentenced to prison terms varying from six months to two years, taking into consideration “the way the crime [was] committed, defendants’ intent and goal, gravity of the occurring damage and danger”. The Court also decided that “there [was] no need for punishment of the defendants for [the] crime [of “preventing union rights”]”.
4. 554. The Committee notes from the judgment that similar allegations had been lodged against trade union leaders in the past and that these defendants were already under investigation when the events reported in this case occurred. In the framework of these investigations, mobile communications of several defendants were wiretapped. According to the investigation records appearing in the judgment:
   • …
   • It has been taken under record … that, in the event scene a group of about 12–13 people formed by TÜMTIS personnel carrying iron bars and wooden sticks in their hands have gathered in front of the business location owned by complainant …
   • As expected, after the suspects were taken under custody with the police line-up and identification done on 20.11.2007 it has been determined that on 20.08.2007 the suspects … had various bars/sticks in their hands and were among the crowd gathering in front of the complainant workplace …
   • As a result of the detainment and search orders for the suspects issued in consideration of the advances in the investigation all suspects have been detained starting from 20.11.2007 morning and police searches have been conducted in suspects’ addresses and TÜMTIS Ankara Branch Presidency building.
   • …
5. 555. It further appears from the judgment that as a result of the search, illegal weapons have been confiscated from some of the defendants. Having examined the evidence, the Court considered that “it is certain that the defendants have used force or/and threat methods … to make the complainants hire union member workers, become members of union, otherwise not allow them [to] do business, not unload the goods arriving in trucks to the complainants’ workplaces …, their workers will be beaten [and] won’t be allowed to earn a living and by going in front of complainants’ workplaces as crowded groups and inciting events, by using force …” and this way have committed the crime of “setting up a criminal organization aiming to make gain and membership to this organization” and “violating job and employment freedoms”.
6. 556. In the light of the contradictory information presented in this case and insufficient information available to it, the Committee is not in a position to determine whether the complainants’ freedom of association rights were violated but must nevertheless express its concern over the fact that the main thrust of the prison sentences appears to concern the violation of job and employment freedoms without a direct link to acts of violence or damaging property. Indeed, according to the judgment, “the people damaging vehicles belonging to the complainant [employer] are not known to the complainant and they have not been identified clearly with the investigation either, in this situation it has been necessary to decide acquittal of defendants … because clear and persuasive evidence sufficient to decide that they committed the crime of damaging property has not been found”.
7. 557. The Committee notes the complainants’ indication that an appeal has been lodged against this decision handed down two and half years ago. Observing that no further information has been provided on the developments regarding the appeal, it requests the Government and the complainants to provide information in this respect and to indicate whether, given the period of their sentences, the trade unionists in question are now free.
8. 558. The Committee further notes that according to the complainants, following the prosecution against the Ankara TÜMTIS leaders, a case was opened by the Turkish national prosecutor against the TÜMTIS national office in Istanbul on charges of it being a criminal organization. According to the complainants, a total of nine cases have been opened against TÜMTIS by the national prosecutor with a view to dissolving it. They further allege that in 2013, a case was opened by the national prosecutor against TÜMTIS National President Kenan Ozturk and Ankara Branch President Nurettin Kilicdogan for criticizing the country’s new labour law and allegedly holding an illegal demonstration. The Committee notes that the Government appears to confirm that the public prosecutor of Istanbul had in fact filed a suit in the 5th Labour Court of Istanbul to dissolve TÜMTIS pursuant to section 58 entitled “Dissolution” of Trade Union Act No. 2821 on the grounds of “establishing a criminal syndicate for the purpose of generating economic profit through trade union”, but at the same time points out that this legislation became obsolete following the adoption of Trade Unions and Collective Labour Agreements Act No. 6356 on 18 October 2012. The Government further points out that if a trade union official commits a crime, his or her individual responsibility is engaged and the trade union in question is protected against dissolution. Taking into account this legislative change, the Committee requests the Government to provide information on the current status of the TÜMTIS dissolution cases. It further requests the Government and the complainants to provide detailed information on the alleged prosecution of TÜMTIS National President Kenan Ozturk and Ankara Branch President Nurettin Kilicdogan for allegedly criticizing the new labour law and holding an illegal demonstration.