Resolution CM/ ResDH (2011)308 [1]

Execution of the judgment of the European Court of Human Rights

Demir and Baykara against Turkey

(Application No. 34503/97, judgment of 12/11/2008 , Grand Chamber )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern interference with the exercise by the applicants, municipal civil servants, of their right to form a trade union and the annulment with retrospective effect of a collective agreement (double violation of Article 11) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set , the respondent state paid the a p plicant s the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)308

Information about the measures to comply with the judgment in the case of

Demir and Baykara against Turkey

Introductory case summary

The case concerns the violation of the right to freedom of association of the applicants, municipal civil servants who were respectively a member and the Chairperson of the trade union Tüm Bel Sen. The European Court found that the interference with the applicants ’ exercise of their right to form trade unions and to negotiate collective agreements through the annulment with retrospective effect of a collective agreement between their employing authority and their trade union was not necessary in a democratic society (double violation of Article 11).

In 1993 the trade union entered into a collective agreement with the Gaziantep Municipal Council. The Council failed to comply with certain financial obligations under the agreement and was subsequently sued by the trade union. In December 1995 the Court of Cassation ruled that in the absence of specific legislation the freedom to join a trade union and to bargain collectively could not be exercised by civil servants. It concluded that, given that the union had been founded at a time when the law did not authorise public servants to create trade unions, it had never enjoyed legal personality and therefore did not have the capacity to take or defend court proceedings.

With regard to the first limb of the violation, the European Court held that at the relevant time the Turkish authorities had not been able to secure to the applicants the right to form a trade union, mainly for two reasons : f irst, the Turkish legislature, after the ratification in 1993 of the ILO Convention No. 87, did not enact legislation to govern the practical application of that right until 2001 ; s econdly, the Court of Cassation adopted a restrictive and formalistic interpretation of domestic legislation and considered that in the absence of specific legislation the freedom to join a trade union and to bargain collectively could not be exercised by civil servants.

With regard to the second limb of the violation the European Court, after having observed that the right of civil servants to be able to bargain collectively was recognised by universal and regional legal instruments and that in 1952 Turkey had ratified ILO Convention No. 98, considered that the refusal to accept that the applicants enjoyed the right to bargain collectively did not correspond to a “pressing social need”.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

500 EUR

-

20 500 EUR

Paid on 11/02/2009

b) Individual measures

Following the change of legislation (see below), there are no restrictions on the applicants ’ forming a trade union or entering into collective bargaining. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

As far as the right of civil servants to form and join a trade union is concerned, a number of legislative and constitutional amendments have been introduced allowing civil servants to form trade unions.

First, by amendments introduced in October 2001 and July 1995, the right to form and to join trade unions for civil servants was recognised in Articles 51 and 53 of the Turkish Constitution.

Secondly, Law N o. 4688 of 25/06/2001 on trade unions formed by civil servants, as amended by Law N o. 5198 of 24/06/2004, guarantee the right for trade unions to “defend the economic, social and professional interests” ( Articles 1 and 14) of civil servants. Article 18 of the same law prohibits discriminatory treatment in the enjoyment of this right. In particular, Article 18 § 1 prohibits the dismissal of a civil servant on the ground of affiliation to a trade union or involvement in trade - union activity outside working hours or with the approval of the employer during working hours.

As far as the right of civil servants to enter into collective bargaining is concerned, Article 53 § 3 of the Constitution, as amended by Law N o. 4121 of 23/07/1995 (see § 36 of the judgment) and Law N o. 5982 of 12/09/2010, provides that civil servants shall have the right to enter into collective bargaining with the administration.

Finally, the judgment of the European Court in this case has been translated into Turkish, published on the web-site of the Ministry of Justice and sent out to the relevant authorities.

III. Conclusions of the respondent state

The government considers that no individual measure is required apart from the payment of the just satisfaction , that the general measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.