CASE OF DEMİR AND BAYKARA v. TURKEY
Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award
9. The applicants, Kemal Demir and Vicdan Baykara, were born in 1951 and 1958 and live in Gaziantep and Istanbul respectively. The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its president. 10. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various localities under the Civil Servants Act (Law no. 657). Under Article 2 of its constitution its objective is to promote democratic trade unionism to further the aspirations and claims of its members. Its head office is located in Istanbul. 11. On 27 February 1993 Tüm Bel Sen entered into a collective agreement with Gaziantep Municipal Council for a period of two years from 1 January 1993. The agreement concerned all aspects of the working conditions of Gaziantep Municipal Council’s employees, including salaries, allowances and welfare services. 12. As the Municipal Council had defaulted on certain of its obligations under the agreement, in particular those of a financial nature, the first applicant, as a representative of the union, brought civil proceedings against it in the Gaziantep District Court (the “District Court”) on 18 June 1993. 13. In a judgment of 22 June 1994 the District Court found in favour of Tüm Bel Sen. Gaziantep Municipal Council appealed on points of law. 14. On 13 December 1994 the Court of Cassation quashed the judgment of the court below. It found that, even though there was no legal bar preventing civil servants from forming unions, they were not, as the law stood, authorised to enter into collective agreements. 15. In a judgment of 28 March 1995 the District Court confirmed its earlier judgment on the ground that, despite the fact that the domestic statute contained no express provision affording unions formed by civil servants the right to enter into collective agreements, this omission had to be remedied in the light of international treaties such as the relevant convention of the International Labour Organisation, which had already been ratified by Turkey. 16. On 6 December 1995 the Court of Cassation quashed the judgment of the court below. It ruled that, at the time the union was formed, the applicable law did not permit civil servants to form trade unions. The union Tüm Bel Sen could not rely on the international labour conventions that dealt with such matters as they had not yet been incorporated into domestic law and no implementing legislation had been enacted. The Court of Cassation concluded that the union did not have legal personality or the capacity to enter into a collective agreement. 17. An application for rectification lodged by representatives of the union was dismissed by the Court of Cassation on 10 April 1996. 18. Following an audit of Gaziantep Municipal Council’s accounts by the Audit Court, the State asked the members of the union Tüm Bel Sen to reimburse the additional income they had purportedly received as a result of the defunct collective agreement. 19. The relevant provisions of the Turkish Constitution read as follows: “Operative workers and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in their labour relations. In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation is not in conformity with the law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions. Everyone shall be free to become a member of or withdraw from membership of a union. No one shall be compelled to become a member, remain a member, or withdraw from membership of a union. Operative workers and employers cannot hold concurrent memberships in more than one trade union. Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union. In order to hold a leadership position in a trade union or federation of trade unions, it is necessary to have effectively been employed as an operative worker for at least ten years. The statutes, administration, and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.” “Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in their labour relations, and to join and withdraw from such entities of their own free will. No one shall be compelled to become a member or withdraw from membership of a union. The right to form a union may only be restricted by law and for the purposes of safeguarding national security or public order and preventing crime, and for the protection of public health or public morals and the rights and freedoms of others. The formalities, conditions and procedures to be applied in exercising the right to form a union shall be established by law. It is not permitted to hold membership of more than one trade union simultaneously within the same sector of employment. The scope of the rights in this area of State employees who do not have the status of operative worker, and the exceptions and limitations applicable to them, shall be established by law in accordance with the nature of the tasks entrusted to them. The statutes, administration and functioning of trade unions and federations of unions must not be inconsistent with the fundamental characteristics of the Republic or with democratic principles.” “Operative workers and employers shall have the right, in the course of their bilateral relations, to enter into collective bargaining agreements in order to regulate their economic and social position and conditions of work. Collective agreements shall be entered into in accordance with the statutory procedure. It shall be prohibited to enter into or apply more than one collective agreement in a single workplace within the same period.” “Workers and employers shall have the right, in the course of their bilateral relations, to enter into collective agreements in order to regulate their economic and social position and conditions of work. Collective agreements shall be entered into in accordance with the statutory procedure. The trade unions and federations of unions which the State employees referred to in the first paragraph of Article 128 shall be entitled to form and which do not fall within the scope of the first and second paragraphs of the present article, nor that of Article 54, may appeal to judicial authorities and may engage in collective bargaining with the administration in accordance with their aims on behalf of their members. If an agreement is reached as a result of collective bargaining, the text of the agreement shall be signed by the parties. This text shall be presented to the Council of Ministers so that administrative or judicial arrangements can be made. If no such agreement is reached through collective bargaining, the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by the Council of Ministers. The procedure for the implementation of this paragraph shall be set out in legislation. It shall be prohibited to enter into or apply more than one collective agreement in a single workplace within the same period.” “The essential and permanent duties required by the public services that the State, State economic enterprises and other public corporate bodies are assigned to perform, in accordance with general principles of administration, shall be carried out by civil servants and other State employees. The qualifications, appointment, duties and powers, rights and responsibilities, and salaries and allowances of civil servants and other State employees, and other matters related to their status, shall be provided for by law. The procedure and principles governing the training of senior civil servants shall be specially provided for by law.” 20. Section 22 of the Civil Servants Act (Law no. 657) of 14 July 1965 stated that civil servants were authorised to form and join trade unions and professional organisations, in accordance with the conditions set out in special laws. Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities. That section was repealed by Article 5 of Legislative-Decree no. 2 of 23 December 1972. It was brought back into force by section 1 of Law no. 4275 of 12 June 1997. The text now reads: “Civil servants shall be authorised to form trade unions and federations of trade unions and to join them.” 21. Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87) provides: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” 22. The relevant articles of the Right to Organise and Collective Bargaining Convention, 1949 (Convention No. 98) read as follows: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” “1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations. 2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.” “This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.” 23. The relevant provisions of the European Social Charter provide as follows: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” “With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”