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Demir and Baykara v Turkey, 12 November 2008 [ECtHR]

Case no 34503/97

B. The right for municipal civil servants to form trade unions

   1. Chamber judgment

87. The Chamber considered that it had not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants by Turkish law, as it was applied at the material time, met a “pressing social need”. It found that the mere fact that the “legislation [had] not provide[d] for such a possibility” was not sufficient to warrant a measure as radical as the dissolution of a trade union.
88. Referring to the judgment in Tüm Haber Sen and Çınar v. Turkey (no. 28602/95, §§ 36-39, ECHR 2006‑...), the Chamber considered that, absent any concrete evidence to show that the activities of the trade union Tüm Bel Sen represented a threat to society or to the State, the respondent State, in refusing to recognise the legal personality of the applicants' union, had failed to comply with its obligation to secure the enjoyment of the rights enshrined in Article 11 of the Convention. It held that there had been a violation of Article 11 of the Convention on this point. (...)

   3. The Court's assessment

      (a) Can the applicants, as municipal civil servants, be afforded the guarantees of Article 11 of the Convention?

96. The Court must now deal with the Government's objection that the application is incompatible ratione materiae with the provisions of the Convention on the ground that Article 11 of the Convention is not applicable to “members ... of the administration of the State”.
It is true that paragraph 2 in fine of this provision clearly indicates that the State is bound to respect the freedom of association of its employees, subject to the possible imposition of lawful restrictions on the exercise by members of its armed forces, police or administration of the rights protected in that Article (see Swedish Engine Drivers' Union v. Sweden, § 37, Series A no. 20).
97. In this connection, the Court considers that the restrictions imposed on the three groups mentioned in Article 11 are to be construed strictly and should therefore be confined to the “exercise” of the rights in question. These restrictions must not impair the very essence of the right to organise. On this point the Court does not share the view of the Commission that the term “lawful” in the second sentence of Article 11 § 2 requires no more than that the restriction in question should have a basis in national law, and not be arbitrary and that it does not entail any requirement of proportionality (see Council of Civil Service Unions and Others v. the United Kingdom, no. 11603/85, Commission decision of 20 January 1987, Decisions and Reports 50, p. 241). Moreover, in the Court's view, it is incumbent on the State concerned to show the legitimacy of any restrictions to such persons' right to organise. The Court further considers that municipal civil servants, who are not engaged in the administration of the State as such, cannot in principle be treated as “members of the administration of the State” and, accordingly, be subjected on that basis to a limitation of their right to organise and to form trade unions (see, mutatis mutandis, Tüm Haber Sen and Çınar, cited above, §§ 35-40 and 50).
98. The Court observes that these considerations find support in the majority of the relevant international instruments and in the practice of European States.
99. Whilst paragraph 2 of Article 8 of the International Covenant on Economic, Social and Cultural Rights, which concerns the same subject matter, includes members of the administration of the State among the categories of persons who may be subject to restrictions, Article 22 of the International Covenant on Civil and Political Rights, the wording of which is similar to that of Article 11 of the Convention, provides that the State is entitled to restrict the exercise of the right to freedom of association only of members of the armed forces and of the police, without referring to members of the administration of the State.
100. The Court points out that the principal instrument guaranteeing, internationally, the right for public officials to form trade unions is ILO Convention No. 87 on Freedom of Association, Article 2 of which provides that all workers, without distinction whatsoever, have the right to establish and to join organisations of their own choosing (see paragraph 37 above).
101. The Court observes that the right of public officials to join trade unions has been confirmed on a number of occasions by the Committee of Experts on the Application of Conventions and Recommendations. This Committee, in its Individual Observation to the Turkish Government concerning Convention No. 87, considered that the only admissible exception to the right to organise as contemplated by that instrument concerned the armed forces and the police (see paragraph 38 above).
102. The Court further notes that the ILO Committee on Freedom of Association adopted the same line of reasoning as regards municipal civil servants. In the Committee's view, local public service employees should be able effectively to establish organisations of their own choosing, and these organisations should enjoy the full right to further and defend the interests of the workers whom they represent (see paragraph 39 above).
103. The instruments emanating from European organisations also show that the principle whereby civil servants enjoy the fundamental right of association has been very widely accepted by the member States. For example, Article 5 of the European Social Charter guarantees 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. National legislation may impose partial restrictions on the police and total or partial restrictions on members of the armed forces, but no possibility of restriction is provided for in respect of other members of the administration of the State.
104. The right of association of civil servants has also been recognised by the Committee of Ministers of the Council of Europe in its Recommendation R (2000) 6 on the status of public officials in Europe, Principle no. 8 of which declares that public officials should, in principle, enjoy the same rights as all citizens, and that their trade-union rights should only be lawfully restricted in so far as that is necessary for the proper exercise of their public functions (see paragraph 46 above).
105.  Another European instrument, the European Union's Charter of Fundamental Rights, has adopted an open approach to the right to organise, declaring, in its Article 12(1), among other things, that “everyone” has the right to form and to join trade unions for the protection of his or her interests (see paragraph 47 above).
106. As to European practice, the Court reiterates that the right of public servants to join trade unions is now recognised by all Contracting States (see paragraph 48 above). This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises, whether national or municipal. Civil servants, whether they work for central government or a local authority, are generally entitled to join the trade union of their choosing. The Court also takes note of the fact that the density of trade-union membership is generally higher in the public sector than in the private sector, which constitutes a manifest indication of a favourable legal and administrative environment created by member States. In the majority of member States, the few restrictions that can be found are limited to judicial offices, to the police and to the fire services, with the most stringent restrictions, culminating in the prohibition of union membership, being reserved for members of the armed forces.
107. The Court concludes from this that “members of the administration of the State” cannot be excluded from the scope of Article 11. At most the national authorities are entitled to impose “lawful restrictions” on those members, in accordance with Article 11 § 2. In the present case, however, the Government have failed to show how the nature of the duties performed by the applicants, as municipal civil servants, requires them to be regarded as “members of the administration of the State” subject to such restrictions. Accordingly, the applicants may legitimately rely on Article 11 of the Convention and any interference with the exercise of the right concerned must satisfy the requirements of paragraph 2 of that Article.
108. Accordingly, the applicants may legitimately rely on Article 11 of the Convention and the objection raised by the Government on this point must therefore be dismissed.

      (b) General principles

109. The Court reiterates that Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, 27 October 1975, § 38, Series A no. 19; and Swedish Engine Drivers' Union, cited above, § 39). The Convention makes no distinction between the functions of a Contracting State as holder of public power and its responsibilities as employer. Article 11 is no exception to that rule. On the contrary, paragraph 2 in fine of this provision clearly indicates that the State is bound to respect freedom of assembly and association, subject to the possible imposition of “lawful restrictions” in the case of members of its armed forces, police or administration (see Tüm Haber Sen and Çınar, cited above, § 29). Article 11 is accordingly binding upon the “State as employer”, whether the latter's relations with its employees are governed by public or private law (see Swedish Engine Drivers' Union, cited above, § 37).
110. The Court further reiterates that, although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights. In the specific context of the present case, the responsibility of Turkey would be engaged if the facts complained of by the applicants – that is to say, principally, the non-recognition of their union by the State at the material time – resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V; and Gustafsson v. Sweden, 25 April 1996, § 45, Reports 1996-II).
111. However, as the Court has pointed out in the context of Article 8 of the Convention, whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the rights of an applicant under the Article or in terms of an interference by a public authority, to be justified in accordance with paragraph 2 of the Article, the applicable principles are broadly similar (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003‑VIII).

      (c) Effects of State action or inaction on Tüm Bel Sen's activities

112. The Court must ascertain in the first place whether the Government's argument that the cassation judgment of 6 December 1995 had no effects on the union activities of Tüm Bel Sen is confirmed by the facts of the case.
113. It observes in this connection that the said judgment, to the extent that it was found therein that the applicant trade union had not acquired legal personality when it was created and, accordingly, that it was not entitled to take or defend legal proceedings, had two effects on the union's activities, one retrospective, the other prospective.
114. The judgment in question had the retrospective effect of rendering null and void ab initio all the activities and actions that Tüm Bel Sen had undertaken between 1991 and 1993 in relation to the Gaziantep Municipal Council for the purpose of protecting its members' interests, including the collective agreement involved in the present case. That effect was compounded by the decisions of the Audit Court requiring the reimbursement of the advantages obtained by members of the trade union as a result of negotiations with the employing authority.
115. As to the prospective effect of the cassation judgment in question, the Court regards as credible the applicants' argument that the trade union Tüm Bel Sen had seen its activities considerably restricted as a result of the reluctance on the part of the heads of local authorities to enter into negotiations with it. It can be seen from the case file, firstly, that heads of municipal authorities who had agreed to grant advantages to civil servants under collective agreements had faced administrative, financial and judicial proceedings prior to the enactment of Law no. 4688 on 25 June 2001, and, secondly, that even after that date they were themselves obliged to reimburse to the State any additional sums that had been paid at the material time and then in turn bring proceedings against the civil servants who had received them.
116. As noted above (paragraph 88), the Chamber not only considered that there had been an unjustified interference with the rights of the applicants under Article 11 but that, in refusing to recognise the legal personality of the applicants' union, the State had failed to comply with its positive obligation to secure the enjoyment of the rights enshrined in that Article. Like the Chamber, the Grand Chamber considers that the present case can be analysed either as an interference with Article 11 or as a failure by the State to comply with its positive obligation to secure the applicants' rights under this provision. In the particular circumstances of the present case the Court considers that both approaches are possible given the mixture of action and inaction on the part of the authorities with which it is confronted. Accordingly it will proceed on the basis that this part of the case should be analysed from the standpoint of whether there was an interference with the applicants' rights but it will also have regard to the State's positive obligations in so doing.

      (d) Compliance with Article 11

         (i)  Prescription by law and pursuit of a legitimate aim

117. Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” for the achievement of those aims.
118. The Court notes that the impugned interference was in accordance with the domestic law as interpreted by the combined civil divisions of the Court of Cassation. Moreover, it is not in dispute that the judgment in question, in so far as it sought to prevent discrepancy between legislation and practice, was intended to prevent disorder (see Tüm Haber Sen and Çınar, cited above, §§ 33-34).

         (ii)  Necessity in a democratic society

119. As to the necessity of such interference in a democratic society, the Court reiterates that lawful restrictions may be imposed on the exercise of trade-union rights by members of the armed forces, of the police or of the administration of the State. However, it must also be borne in mind that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining in such cases whether a “necessity” – and therefore a “pressing social need” – within the meaning of Article 11 § 2 exists, States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports 1998‑IV). The Court must also look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the appropriate provision of the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, for example, Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 51, ECHR 2002‑II).
120. As to whether, in the present case, the non-recognition of the applicants' union was justified by a “pressing social need”, the Grand Chamber endorses the following assessment of the Chamber:
“it has not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants ... by Turkish law, as it applied at the material time, met a 'pressing social need'. The mere fact that the 'legislation did not provide for such a possibility' is not sufficient to warrant as radical a measure as the dissolution of a trade union.”
121. The Court further considers that at the material time there were a number of additional arguments in support of the idea that the non-recognition of the right of the applicants, as municipal civil servants, to form a trade union did not correspond to a “necessity”.
122.  Firstly, the right of civil servants to form and join trade unions was already recognised by instruments of international law, both universal (see paragraphs 98-102 above) and regional (see paragraphs 103-105 above). In addition, an examination of European practice shows that the freedom of association of public officials was generally recognised in all member States (see paragraph 106 above).
123. Secondly, Turkey had already, at the material time, ratified (by an instrument deposited on 12 July 1993) ILO Convention No. 87, the fundamental text securing, internationally, the right of public officials to form trade unions. This instrument was already, by virtue of the Turkish Constitution, directly applicable in domestic law (see paragraph 34 above).
124. Lastly, Turkey confirmed by its subsequent practice its willingness to recognise the right to organise of civil servants – a willingness already expressed by the ratification of ILO Convention No. 87 in 1993 – by the amendment of the Constitution in 1995 and by the practice of the judicial organs from the early 1990s onwards. That latter practice is illustrated by the decisions taken in the present case by the District Court and the Fourth Civil Division of the Court of Cassation. Moreover, in 2000 Turkey signed the two United Nations instruments recognising the right in question (see paragraphs 40 and 41 above).
125. The Court observes that, in spite of these developments in international law, the Turkish authorities were unable to secure to the applicants the right to form a trade union, mainly for two reasons. Firstly, the Turkish legislature, after the ratification in 1993 of ILO Convention No. 87 by Turkey, did nothing more until 2001, the year in which it enacted the Civil Servants' Trade Union Act (Law no. 4688), which governs the practical application of this right. Secondly, during this transitional period, the combined civil divisions of the Court of Cassation refused to follow the solution proposed by the Gaziantep District Court, which had been guided by developments in international law, and gave a restrictive and formalistic interpretation of the domestic legislation concerning the forming of legal entities. This interpretation prevented the combined civil divisions from assessing the specific circumstances of the case and from ascertaining whether a fair balance had been struck between the respective interests of the applicants and of the employing authority, Gaziantep Municipal Council (see, mutatis mutandis, Sørensen and Rasmussen, cited above, § 58).
126. The Court thus considers that the combined effect of the restrictive interpretation by the Court of Cassation and the legislature's inactivity between 1993 and 2001 prevented the State from fulfilling its obligation to secure to the applicants the enjoyment of their trade-union rights and cannot be justified as “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.
127. Accordingly, there has been a violation of Article 11 of the Convention on account of the failure to recognise the right of the applicants, as municipal civil servants, to form a trade union.

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