Allegations: the complainant organizations 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 union movement
- 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.
- 533. The Government sent its observations in a communication dated 12
February 2015.
- 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
A. The complainants’ allegations- 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.
- 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 |
>
- 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.
- 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.
- 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.
- 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.
- 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”.
- 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.
- 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.
- 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
B. The Government’s reply- 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.
- 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.
- 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”.
- 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”.
- 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”.
- 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
C. The Committee’s conclusions- 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.
- 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.
- 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”]”.
- 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.
- …
- 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”.
- 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”.
- 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.
- 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.
The Committee’s recommendations
The Committee’s recommendations- 559. In the light of its foregoing interim conclusions, the Committee
invites the Governing Body to approve the following recommendations:
- (a) The
Committee requests the Government and the complainants to provide information on the
appeal regarding the 20 November 2012 decision of the High Criminal Court and to
indicate whether, given the period of their sentences, the trade unionists in
question are now free.
- (b) The Committee requests the Government to provide
information on the current status of the TÜMTIS dissolution cases.
- (c) The
Committee 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.
