Freedom of Association Law and Practice in Turkey
KHRP
Compte d’auteur
Kurdish Human Rights Project
The Kurdish Human Rights project is an independent non-political project founded and based in Britain. The KHRP is a registered charity. It is committed to the protection of the human rights of all persons within the Kurdish areas, irrespective of race, religion, sex, political persuasion or other belief or opinion. Its supporters include both Kurdish and non-Kurdish people.
AIMS
To promote awareness of the situation of the Kurds in Iran, Iraq, Syria, Turkey and countries of the former Soviet Union. To bring an end to the violation of the rights of the Kurds in these countries and of Kurds and non-Kurds in predominantly Kurdish areas. To promote the protection of human rights of Kurdish people everywhere.
METHODS
Monitoring legislation including emergency legislation, and its application. Conducting investigations and producing reports on the human rights situation of Kurds in Iran, Iraq, Syria, Turkey, and in the countries of the former Soviet Union by, amongst other methods, sending trial observers and engaging in fact-finding missions. Using such reports to promote awareness of the plight of the Kurds on the part of committees established under human rights treaties to monitor compliance of states.
Using the reports to promote the awareness of the plight of the Kurds on the part of the European Parliament, the Parliamentary Assembly of the Council of Europe, the national parliamentary bodies and inter-governmental organisations including the United Nations.
Liasing with other independent human rights organisations working in the same field, and co-operating with lawyers, journalists and others concerned with human rights.
Assisting individuals with their applications before the European Commission and Court of Human Rights in Strasbourg,
Offering assistance to indigenous human rights groups and lawyers in the form of advice and training seminars on international human rights mechanisms.
Contents
Foreword / i
Background on the Human Rights Situation in Turkey / 1
Chapter I
1.1 Trade Unionism in Turkey Today / 6
1.2 The Concept of Individual and Collective Trade Union Freedom in Turkey / 8
Chapter II
2.1 Associations and Trade Unions in Turkey / 12
2.2 The Turkish Legal Framework / 13
2.3 Legal Prohibitions on the Right to Freedom of Association in Turkey / 17
2.4 The Right to Form and Join Trade Unions / 19
2.5 The Right to Strike 29
2.6 The Right to Enter into Collective Bargaining / 34
Chapter III
3.1 Restrictions on the Right to freedom of Association - Case Studies / 37
Chapter IV
4.1 The International Legal Framework / 51
4.2 The International Labour Organisation / 52
4.3 The European Social Charter / 56
Chapter V
5.1 The European Convention on Human Rights / 60
5.2 The Right to Peaceful Assembly under the European Convention / 62
5.3 The United Communist Party of Turkey v. Turkey / 68
Conclusion / 81
Recommendations / 86
Appendix
European Social Charter / 90
ILO Convention Number 87:
Concerning Freedom of Association and Protection of the Right to Organise / 91
ILO Convention Number 98: Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively / 94
European Convention on Human Rights / 94
FOREWORD
When the UN Commissioner for Human Rights, Mary Robinson, recently addressed the 86th International Labour Conference of the International Labour Organisation (the ILO) she pointed out that it was “important to protect civil and political rights ... but also to understand the interdependence of rights and to recognise economic and social and cultural rights and the right to development”.1
Having recognised that labour rights, being social rights, are also human rights, and play an important role in maintaining the integrity of any system of human rights, then there can be few legitimate reasons for not observing them. Indeed, a universally recognised human right such as that contained in Article 20 of the Universal Declaration of Human Rights which states that “everyone has the right to freedom of peaceful assembly and association”, implies that all countries must observe that right, regardless of their economic, social, religious or cultural system. Yet the UN Commissioner has further stated that “all countries have human rights problems, and that includes problems with basic labour rights”.
The implementation of international human rights standards is the focus of this report, and it is against the backdrop of Turkey’s international obligations that an examination of the law and practice of freedom of association in Turkey has been carried out.
As the restrictions imposed on the right to freedom of association in Turkey are at times based on political considerations, all types of associations - be they trade unions, political parties or cultural associations - are prosecuted in the Turkish courts for conduct which falls within internationally agreed legal standards. Therefore, a number of current cases involving political parties and organisations involved in the promotion of human, cultural or political rights are analysed in order to illustrate a few of the fundamental institutional restraints which continue to impede the activities of so many Turkish associations.
By providing an overview of the current situation in Turkey, and by identifying those provisions contained in Turkish legislation which could be amended or applied less restrictively, this report seeks to promote a future where national legislation complies with the international obligations which Turkey has undertaken to observe. After all, the Turkish government has said that it is working “to protect and promote human rights in Turkey in an understanding that conforms with contemporary and universal standards and to prevent practices which are incompatible with human rights”.2
This report also constitutes the first examination in English of trade union rights in Turkey. By providing an accurate overview of national and international legislation pertaining to the right to freedom of association in general, and trade union rights in particular, it is hoped that this report will prove useful in promoting these important human rights as well as creating awareness about the situation of trade unions in Turkey.
Kerim Yildiz
Executive Director
1 ILO Press Release (ILO/98/27) dated 10 June 1998.
2 The 55th Government's Programme adopted on 7 July 1997.
Background on the Human Rights Situation in Turkey
Serious human rights violations - primarily concerned with freedom of expression, ill treatment and torture in detention, extra-judicial executions and disappearances -have remained a problem in Turkey throughout that State’s history. Although violations are perpetrated against individuals of Kurdish origin because of their perceived support for the Kurdistan Worker’s Party (the PKK) whose aim it is to achieve self-rule for Turkey’s Kurdish minority, others in Turkey also suffer abuses.
Emergency rule is in force in several provinces in the Kurdish area of southeast Turkey, where the Turkish security forces continue to engage in armed conflict with the PKK. This situation has restricted basic human rights normally enjoyed by citizens of a democratic country and has claimed the lives of innocent civilians, lead to the gradual depopulation of areas in the southeast and increased poverty for those left behind.
Despite the fact that emergency rule has been gradually lifted in a number of provinces, and despite government assurances to the effect that human rights would be protected by the authorities, organisations such as Amnesty International and the Kurdish Human Rights Project (KHRP) have continued to receive reports of serious allegations of human rights violations.
Moreover, judgments in cases brought before the European Commission of Human Rights (the Commission) and the European Court of Human Rights (the Court) by Kurdish and Turkish people with the assistance of KHRP, reveal that the Turkish government has yet to ensure even the most basic of human rights for all of its citizens. For example, in November 1997 the Court found in the case of Aydin v. Turkey1, that a 17 year old woman had been raped by police while in custody. The applicant had also been blindfolded, beaten, stripped naked, placed in a tyre and hosed with pressurised water. The government had denied the allegations.
Later in March 1998 in another case assisted by KHRP, Tekin v. Turkey2, the applicant alleged that he had been ill treated by the police while in detention. The Court held that Turkish police officers had, contrary to government denials, beaten him severely when in their custody. In April 1998, the Court ruled in the case of Selcuk & Asker v. Turkey3 that the Turkish security forces had deliberately burnt down the applicants’ houses in the village of Kulp in southeast Turkey.
While in July 1998, the Court delivered judgment in the case of Ergi v. Turkey4 in which the applicant complained that the security forces had killed his sister and that the authorities had failed to conduct a proper investigation into the matter. The Court found that Turkey had indeed failed to protect the life of the applicant’s sister and that the Turkish judiciary had failed to duly investigate the complaints of murder made by the applicant to the authorities.
These are but a few of the cases brought before the Court and the fact that the vast majority of victims of violations do not, or cannot, take legal action, even before a national court, is an indication of the scale of the human rights problems in Turkey today. It is also telling that those who commit themselves to promoting and protecting the human rights of others are harassed and intimidated by the Turkish authorities. In particular, the government has been persistent in its efforts to silence the Human Rights Foundation of Turkey (HRFT) and the Human Rights Association of Turkey (IHD). Examples of such treatment are contained in this report.
Freedom of expression and the media are controlled by the Turkish government in such a way that many journalists and writers are sentenced to long terms of imprisonment for what Article 8 of the Anti-Terror Law describes as “written and oral propaganda and assemblies, meetings and demonstrations with the aim of damaging the indivisible unity of the State of the Republic of Turkey, the nation and its territories”.
The exercise of the right to freedom of association and peaceful assembly is also closely monitored and controlled by the Turkish government. For example, members of the pro-Kurdish People's Democracy Party (HADEP), which has stated that it is committed to democratic values, have faced trial over recent years accused of having links with the PKK. In addition, a number of political parties, including the party of former Prime Minister Erbakan, have been effectively closed down by the Constitutional Court. These and other incidents will be discussed in this report.
The above examples are illustrative of the difficulties faced by associations in Turkey today. The examination of the right to freedom of association in this report will hopefully provide a basis for informed consideration of the issues at stake by all concerned.
Chapter 1
1.1 Trade Unionism in Turkey Today
Traditionally, trade unions in Turkey have been called organised federations; now they are known as “confederations”5. According to Article 2(7) of the Trade Unions Act6, confederations are associations consisting of more than five trade unions representing different areas of activity.
The current trade union movement in Turkey is dominated by four confederations, each confederation acting as an umbrella organisation for individual trade unions. The names of these confederations are Tiirk-I§ (The Confederation of Trade Unions of Turkey), HAK-I§ (The Confederation of Righteous Trade Unions of Turkey), KESK (The Confederation of Public Servants’ Trade Unions) and DISK (The Confederation of Revolutionary Trade Unions of Turkey).
…..
1 Application No. 25660/94, see generally Kurdish Human Rights Project, 'Aksoy v. Turkey; Aydin v. Turkey: A Case Report on the Practice of Torture in Turkey', vol. I and II, December 1997.
2 Application No. 52/1997/836/1042.
3 Application No. 12/1997/796/998.
4 Application No. 66/1997/850/1057.
5 The history of the trade union movement in Turkey is beyond the scope of this report.
6 Law No. 2821 of 7 May 1998.
KHRP
Freedom of Association
Law and Practice in Turkey
Compte d’auteur
Compte d’auteur
Freedom of Association
Law and Practice in Turkey
Kurdish Human Rights Project
Kurdish Human Rights Project
August 1998
KHRP
Kurdish Human Rights Project
Suite 319, Linen Hall,
162-168 Regent Street
London, England W1R 5TB
Tel: +44 171 287 2772
Fax: +44 171 734 4927
E-mail: khrp@khrp.demon.co.uk
Internet: http:Wwww.khrp.org
ISBN: 1 900175 18 5
Published by the Kurdish Human Rights Project, London.
© Kurdish Human Rights Project, 1998.
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KHRP
Kurdish Human Rights Project
Suite319, Linen Hall
162-168 Regent Street
London W1R 5TB
Tel: (0171)287 2772
Fax:(0171)734 4927
E-mail:khrp@khrp. demon.co.uk
Website: http://www.khrp.org
