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Article 12 - Freedom of assembly and of association
Article 28 - Right of collective bargaining and action
Key facts of the case:
1. The case originated in an application (no. 34503/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Kemal Demir and Mrs Vicdan Baykara (“the applicants”), the latter in her capacity as President of the trade union Tüm Bel Sen, on 8 October 1996.
3. The applicants complained that, in breach of Article 11 of the Convention, by itself or in conjunction with Article 14, the domestic courts had denied them, firstly, the right to form trade unions and, secondly, the right to engage in collective bargaining and enter into collective agreements.
15) The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under Article 2 of its constitution, the trade union’s objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims. Its head office is located in Istanbul.
16) On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years, effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council’s employees, such as salaries, allowances and welfare services.
17) As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular its financial obligations, the second applicant, as President of the trade union, brought civil proceedings against it in the Gaziantep District Court (“the District Court”) on 18 June 1993.
18) In a judgment of 22 June 1994, the District Court found in favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed on points of law.
19) On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court’s judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood.
20) In arriving at this conclusion, the Court of Cassation took into account the special relationship between civil servants and the public administration as regards recruitment, the nature and scope of the work concerned, and the privileges and guarantees afforded to officials by virtue of their status. It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take strike or lock-out action, could not apply to relations between civil servants and a public administration. Any agreement of a “collective” nature between civil servants’ unions and a public administration had to be grounded in specific legislation.
21) In a judgment of 28 March 1995, the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation (ILO) which had already been ratified by Turkey and which, by virtue of the Turkish Constitution, were directly applicable in domestic law.
26) In a judgment of 6 December 1995, the Court of Cassation (combined civil divisions) quashed the District Court’s judgment of 28 March 1995. It found that certain rights and freedoms mentioned in the Turkish Constitution were directly applicable to litigants, whereas others were not. In fact, the Constitution, by the indication “the exercise of this right shall be governed by legislation” clearly earmarked the rights and freedoms which, to be used and applied, required the enactment of specific legislation. Absent such legislation, these rights and freedoms, which included the freedom to join a trade union and to bargain collectively, could not be exercised.
Outcome of the case:
For these reasons, the Court unanimously
1) Joins to the merits the Government’s preliminary objections and dismisses them;
2) Holds that there has been a violation of Article 11 of the Convention on account of the interference with the right of the applicants, as municipal civil servants, to form a trade union;
3) Holds that there has been a violation of Article 11 of the Convention on account of the annulment ex tunc of the collective agreement entered into by the trade union Tüm Bel Sen following collective bargaining with the employing authority;
4) Holds that it is not necessary to examine separately the complaints submitted under Article 14 of the Convention;
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) to Mrs Vicdan Baykara, representative of the trade union Tüm Bel Sen, EUR 20,000 (twenty thousand euros) in respect of non‑pecuniary damage, to be distributed by her to the said trade union;
(ii) to Mr Kemal Demir, EUR 500 (five hundred euros) in respect of all heads of damage combined;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6) Dismisses the remainder of the applicants’ claim for just satisfaction.
Paragraphs referring to the EU Charter in the Court judgment:
76) The Court recently confirmed, in its Saadi judgment (cited above, § 63), that when it considers the object and purpose of the Convention provisions, it also takes into account the international law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty.
80) Moreover, in the cases of Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002‑VI), Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑II) and Sørensen and Rasmussen (cited above), the Court was guided by the European Union’s Charter of Fundamental Rights, even though this instrument was not binding. Furthermore, in the cases of McElhinney v. Ireland ([GC], no. 31253/96, ECHR 2001‑XI), Al-Adsani (cited above) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001‑XI), the Court took note of the European Convention on State Immunity, which had only been ratified at the time by eight member States.
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).
150) As to the European Union’s Charter of Fundamental Rights, which is one of the most recent European instruments, it provides in Article 28 that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels.
Paragraphs referring to the EU Charter in the separate opinion of Judge Zagrebelsky:
2) The Court has thus expressly departed from its case-law, taking into account “the perceptible evolution in such matters, in both international law and domestic legal systems” (see paragraph 153 of the judgment). In reality, the new and recent fact that may be regarded as indicating an evolution internationally appears to be only the proclamation (in 2000) of the European Union’s Charter of Fundamental Rights. The evolution of legislation in the various States (see paragraphs 52 and 151 of the judgment) is a more difficult basis on which to assess the time or period from which a significant change became perceptible.
I have the feeling that the Court’s departure from precedent represents a correction of its previous case-law rather than an adaptation of case-law to a real change, at European or domestic level, in the legislative framework (as was the case, for example, in its Stafford v. the United Kingdom judgment of 28 May 2002 ([GC], no. 46295/99, ECHR 2002‑IV)) or in the relevant social and cultural ethos (as, for example, in the Christine Goodwin v. the United Kingdom judgment of 11 July 2002 ([GC], no. 28957/95, ECHR 2002‑VI)). This departure is probably closer to the situation dealt with by the Court in the case of Pessino v. France (no. 40403/02, 10 October 2006) than to the domestic case-law in the S.W. v. the United Kingdom judgment of 22 November 1995 (Series A no. 335‑B). In any event, the evolution of public opinion which rendered foreseeable the solution adopted by the domestic courts in the S.W. v. the United Kingdom case was already evident by the time of the offence of which the applicant stood accused.