Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 135) concernant les représentants des travailleurs, 1971 - Türkiye (Ratification: 1993)

Autre commentaire sur C135

Observation

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2019
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The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TİSK) communicated with the Government’s report.

Article 1 of the Convention. Massive dismissals of public servants. The Committee had previously noted that following the coup attempt in July 2016, a great number of public servants, including an unknown number of trade union representatives, were dismissed on the basis of emergency decrees. In these circumstances, the Committee had requested the Government to ensure that workers’ representatives were not dismissed on the basis of their status or activities as a workers’ representative or of their union membership or participation in union activities, in so far as they acted in conformity with existing laws. In case of existence of grounds to believe that a workers’ representative had been involved in illegal activities, the Committee had requested the Government to ensure that all guarantees of due process were fully afforded. The Committee had further requested the Government to provide statistical information on the number of union representatives affected by the dismissals and suspensions based on emergency decrees. The Committee had noted the establishment, for a two year period, of an ad hoc Inquiry Commission to review the dismissals based on the state of emergency decrees and, in this respect, noted with concern that the Commission would have to deal with a very significant caseload in a relatively short period of time. The Committee had requested the Government to ensure that the Inquiry Commission was accessible to all dismissed workers’ representatives who desire its review, and that it was endowed with the adequate capacity, resources and time to conduct the review process promptly, impartially and expeditiously. The Committee had further requested the Government to ensure that the dismissed workers’ representatives did not bear alone the burden of proving that the dismissals were discriminatory, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was justified based on other grounds. Finally, the Committee had requested the Government to provide statistical information on the number of applications lodged and processed in the Inquiry Commission and administrative courts by affected workers’ representatives and to indicate the outcome of those procedures.

The Committee notes the Government’s indication that the dismissal of public servants from public service, which may include some trade union representatives, by the state of emergency decrees, is based on the grounds of their membership, affiliation or connection to terrorist organizations, following the coup attempt in 2016. It reiterates that after the coup attempt, the Government issued state of emergency decrees to eliminate the influence of terrorist organizations, such as FETO, PKK or ISIS (DAISH). According to the Government, these terrorist organizations, in particular the one that perpetrated the said coup attempt to overthrow the democratically elected legitimate government in Turkey, established themselves within the state structure of the central and local government institutions and agencies, particularly in the armed forces, police, judiciary and educational institutions. The Government further reiterates that public servants are obliged, on the one hand, to carry out their duties with loyalty to the Constitution and the existing laws, in a manner respecting the principles of objectivity and equality, while on the other, not to join or assist any movement, group, organization or association that carry out illegal activities. It points out that being a public servant or a trade union member or representative or even a trade union officer will not ensure immunity from prosecution for illegal activities. The Government further explains that dismissal or suspension procedures of the public servants who are deemed to be member or affiliate of or in liaison or cohort with the terrorist organizations or the structures, entities or groups that are considered by the National Security Council as operating against the national security of the State are conducted in conformity with the provisions of the State of Emergency Act No. 2935 and Civil Servants Act No. 657 and the Decrees with the Force of Law. The Government refers in this respect to the judgement of the Constitutional Court of Turkey in a case involving the dismissal of two members of its court: “although the coup attempt was de facto prevented, taking measures in order to eliminate the dangers against the democratic constitutional order, fundamental rights and freedoms and national security, and to prevent future attempts is not only within the scope of the state’s authority, it is also a duty and responsibility towards individuals and society that cannot be postponed […] in some cases, it may not be possible for the state to eliminate the threats against democratic constitutional order, fundamental rights and freedoms and national security through ordinary administrative procedures. Accordingly, it may be necessary to impose extraordinary administrative procedures until these threats are eliminated”.

The Government explains that the Inquiry Commission was established to ensure that those affected by the state of emergency decrees enjoyed due process of law. Public servants dismissed directly by a decree with the force of law can apply to the Commission and the applicants whose application is rejected by the Commission may bring their case to the competent administrative courts. The Government reiterates that a dismissal through a decree with the force of law is a measure applied only during the state of emergency and all of the judicial recourse avenues are open against the decisions of the Inquiry Commission through the judicial system, including the Constitutional Court of Turkey and the European Court of Human Rights. The Inquiry Commission’s period of office is renewable by one year after the initial two-year period. Hence, the operation of the Commission will continue until its work has been fully carried out. All dismissed public servants, including trade union representatives, have the right to apply to the Inquiry Commission for a review of their dismissals; the only exception being the members of the judiciary whose application should be made to the judicial bodies indicated in the relevant decree and law. The Commission’s activities can be followed by the public through its announcements on its web page. Apart from its seven members, the Commission employs a total of 250 persons, 80 of whom are judges, experts and inspectors employed as rapporteurs. A data processing infrastructure for the application process has been established and all information is recorded in this system. The Commission examines cases on the basis of documents provided by the relevant public institutions. The decisions delivered by the judicial authorities are followed up through National Judiciary Informatics System (UYAP) system.

Following the examination, the Commission may dismiss or accept the application. In case of acceptance of the application concerning those who were dismissed from the public service, profession or organization, the decision is notified to the public organization/institution where the applicant was last employed for his/her reinstatement within 15 days. In case of a rejection, the applicant can have recourse to the competent administrative courts. With regard to burden of proof, the Commission demands from the relevant institution to submit the documents and information showing the applicant’s membership, affiliation or connection to a terrorist organization. If no such document and information is provided and no investigation or prosecution exists about the applicant, then the Commission accepts the application for reinstatement. The decisions of the Commission are transmitted to the relevant institution or organization, which then appoints the person whose reinstatement was pronounced. The Council of Judges and Prosecutors may bring an annulment action before the Ankara Administrative Court against the decision of the Commission and the relevant institution or organization within a period of 60 days as from the date of notification of the decision.

The Government indicates that the Commission delivers individualized and reasoned decisions in respect of approximately 1,200 applications per week. It informs that 131,922 measures were taken through the state of emergency decrees, including the dismissal from public service of 125,678 persons. As of 29 August 2019, the Commission pronounced itself on 84,300 applications out of 126,200 applications received. Among these 84,300 applications examined, 77,600 were rejected. Currently, there are 41,900 applications still pending. The Government points out that 6,700 persons were reinstated. The Government indicates that no statistical information is available on the number of trade union representatives affected and the number of applications to the courts. The Government emphasizes that the Commission undertakes its work with no other intention than to protect the democratic constitutional order, rule of law and the rights of individuals and works in a transparent manner respecting the rights of individuals. According to the Government, due process of law is functioning well and every dismissed public servant has access to legal remedies.

The Committee takes note of the information provided by the Government. The Committee recalls that Article 1 of the Convention requires the effective protection of workers’ representatives against dismissals based on their activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. The Committee further recalls that in this respect it had requested the Government to ensure that the dismissed workers’ representatives did not bear alone the burden of proving that the dismissals were discriminatory. While noting the information provided by the Government in this respect, the Committee requests it to provide further details on the handling of cases where workers’ representatives allege before the Inquiry Commission or the administrative court that they were subject to a dismissal based on their legitimate trade union activity or affiliation. The Committee notes with regret that no statistical information is available on the number of trade union representatives affected and the number of applications made by them to courts and points out that this information is crucial in order to assess whether the protection of workers’ representatives afforded by the Convention is effectively ensured. Noting the detailed information provided by the Government regarding the data processing system established for the purpose of the Inquiry Commission, the Committee urges the Government to take the necessary measures in order to ensure that it allows to retrieve information on the number of trade union representatives affected. The Committee once again requests the Government to provide this information and to indicate, in particular, the number of trade union representatives reinstated following the decision of the Commission and the number of appeals to the administrative courts, as well as the outcome of such appeals.