Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26970/95

by Hasan Çavus EKER

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 March 1995 by

Hasan Çavus EKER against Turkey and registered on 4 April 1995 under

file No. 26970/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, is a labourer. He is

represented before the Commission by Mrs Sibel Bilge Uslu and Mr H.

ibrahim Uslu, lawyers practising in izmir.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

The applicant used to work as a labourer, on temporary contracts

(seasonal worker), for the Bornova Research Institute for Olive

Cultivation (Zeytincilik Arastirma Enstitüsü). His contract expired on

15 December 1992. The institute could not offer him a new contract as

there was no provision in their budget.

The director of the institute told the applicant that he could

continue to work until the end of December, but without any payment and

any further rights. Then the applicant signed a paper dated 14 December

1992 in which it was stated that the applicant would work until the end

of December without any payment and without claiming any further

rights.

The applicant allegedly worked until 4 January 1993 as he risked

finding himself unemployed if he refused the work.

On 30 March 1993, following a request of the Tarim-is Labour

Union, inspectors from the Ministry of Labour and Social Security

conducted inquiries at the Institute. In their report dated 30 March

1993 it was stated that the director of the institute had alleged that

he had not employed the applicant after his contract had expired on 15

December 1992.

By a letter of 20 April 1993 the izmir branch of the Ministry of

Labour and Social Security informed the Tarim-is Labour Union that as

the applicant had been employed between 15 December 1992 and 4 January

1993 without being paid, the institute had been fined since it had

merely contravened labour and social security law.

On 20 September 1993 the applicant brought an action before the

Bornova Labour Court in izmir. He requested the court to rule that the

institute owed him 1,559,000 Turkish Liras for the work he had carried

out between 15 December 1992 and 4 January 1993. He relied on the

report of the Inspectors from the Ministry of Labour and Social

Security according to which he had worked between the above-mentioned

dates.

The defendant institute contested the applicant's allegations,

stating that the applicant had not been employed after the expiry of

his contract with the institute.

On 12 May 1994 the Bornova Labour Court dismissed the applicant's

claim. The Court ruled, on the basis of the evidence adduced by the

parties and statements of the witnesses, that the applicant had not

been employed between 15 December 1992 and 4 March 1993 and that he was

not entitled to any pay.

The applicant's appeal against this judgment was dismissed by the

Court of Cassation on 4 August 1994. The Court of Cassation upheld the

Labour Court's judgment with its reasoning and assessment of the

evidence. The applicant learnt of the decision of the Court of

Cassation on 13 September 1994.

COMPLAINTS

1. The applicant complains under Article 4 para. 2 of the Convention

that he was forced to perform compulsory labour because he was not

paid.

He also maintains that he agreed to work without any payment and

any further rights because he risked finding himself unemployed if he

refused the work.

2. The applicant alleges a violation of Article 6 para. 1 of the

Convention in that he did not have a fair trial by an independent and

impartial tribunal and that the Labour Court did not hear evidence from

his witnesses.

3. He complains under Article 14 of the Convention that his rights

under Article 4 para. 2 of the Convention were violated because he was

a labourer who worked on temporary contracts (seasonal worker) and who

risked finding himself unemployed.

THE LAW

1. The applicant complains under Article 4 para. 2 (Art. 4-2) of the

Convention that he was forced to perform compulsory labour because he

was not paid.

He also maintains that he agreed to work without any payment and

any further rights because he risked finding himself unemployed if he

refused the work.

Article 4 para. 2 (Art. 4-2) of the Convention provides as

follows:

"No one shall be required to perform forced or compulsory

labour."

The Commission observes that, in the instant case, it was

disputed whether or not the applicant had been employed between 15

December 1992 and 4 January 1993. The national courts, on the basis of

the evidence, found that the applicant had not been employed between

the above-mentioned dates. Even assuming that the applicant had been

employed for no pay, he had signed a paper on 14 December 1992 in which

he acknowledged that he would work without claiming any money or any

further rights for the work he would carry out. Therefore there is no

appearance that the applicant was forced to work against his will.

The Commission considers that the applicant cannot be considered

to have carried out "forced or compulsory labour" merely because the

risk of unemployment prompted him to accept work for no pay.

It follows that there is no appearance of a violation of Article

4 para. 2 (Art. 4-2) of the Convention and that this complaint must

therefore to be rejected as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)

of the Convention in that he did not have a fair trial by an

independent and impartial tribunal and in that the Labour Court did not

hear evidence from his witnesses.

Article 6 para. 1 (Art. 6-1) of the Convention, in so far as

relevant, provides as follows:

"In the determination of his civil rights...everyone is entitled

to a fair ...hearing...by an independent and impartial

tribunal...".

The Commission notes that the applicant raises no argument and

adduces no evidence to show that the independence and impartiality of

the court can be questioned.

As regards the applicant's allegation that the Labour Court did

not hear evidence from his witnesses, the Commission recalls that, as

a general rule, it is for the national courts to assess the evidence

before them, as well as the relevance of the evidence which a party to

a case seeks to adduce (cf., mutatis mutandis, No. 25062/94, Dec.

18.10.95, D.R. 83, p. 77).

In the present case, the Commission observes that the Labour

Court based its judgment on the relevant evidence adduced by the

parties. Furthermore, the applicant has not shown that the Labour Court

in fact refused to hear evidence from the witnesses proposed by him.

The Commission therefore considers that there is no appearance of a

lack of fairness on the part of the Labour Court and that the

applicant's allegations are unsubstantiated.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant finally complains under Article 14 (Art. 14) of the

Convention that his rights under Article 4 para. 2 (Art. 4-2) of the

Convention were violated because he was a labourer who worked on

temporary contracts (seasonal worker) and who risked finding himself

unemployed.

However, an examination of this complaint by the Commission, as

it has been submitted by the applicant, does not disclose any

appearance of a violation of the rights and freedoms set out in the

Convention and in particular Articles 4 and 14 (Art. 4, 14) thereof.

It follows that this complaint is also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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EKER v. TURKEY

EKER v. TURKEY

LEXI