ILO Conventions;¹ Work of international supervisory bodies²

Freedom of Association/ Right to collective bargaining/ Use of international law as a guide for interpreting European human rights law/ Reference to international law to strengthen a decision based on European human rights law/ Use of international law in interpreting the European Convention on Human Rights/ Reference to international law to strengthen a decision based on the European Convention on Human Rights

A trade union, founded in Turkey in 1990 by municipal officials, had reached a collective agreement with a municipality. When the latter failed to fulfill its obligations under this agreement, the trade union initiated proceedings in the District Court. The ruling of this court, favourable to the trade union, was subsequently overturned by the Supreme Court, which denied the trade union’s right to engage in collective bargaining with a municipality. 

The Audit Court, as a result of this decision, ordered the trade union members to repay the additional income they had received under the now-defunct collective agreement. Mayors who had concluded collective agreements of this kind were prosecuted in both the criminal and civil courts for abuse of power. 

A member of the trade union and its president brought the case before the European Court of Human Rights. After an initial ruling, finding a violation of Article 11 of the European Convention on Human Rights, the case was referred to the Grand Chamber of the Court at the request of the government of the Turkish Republic, which claimed that the Court could not, even in matters of interpretation, put forward against it any international treaties other than the European Convention on Human Rights. This argument was rejected by the Grand Chamber.  

Explaining its methods of interpretation, the Grand Chamber pointed out that the provisions of the European Convention on Human Rights could be interpreted in the light of international treaties germane to the subject, and also with regard to relevant rules of international law considered as “general legal principles recognized by civilized countries” or “principles established by texts of universal scope” or “internationally accepted norms”.  The Court explained that, in searching for common denominators among the norms of international law, it did not distinguish between sources of law, as to whether or not they had been signed and ratified by the defending government. 

Applying these principles where the right of municipal officials to establish trade unions was concerned, the Court, in its interpretation of Article 11 of the Convention, referred to ILO Convention No. 87 on Freedom of Association. It also based its interpretation on the opinion of the ILO Committee of Experts on the Application of Conventions and Recommendations, which, in its observations drafted for the attention of the Turkish government, considered that the only exception to the right of association envisaged by Convention No. 87 concerned members of the armed forces and the police, not other members of the Administration.³ Where municipal officials were concerned, the Court also referred to the decisions of the Committee on Freedom of Association of the ILO’s Governing Body.⁴ It deduced from these various elements that the restrictions set by Article 11§2 of the European Convention on Human Rights called for a strict interpretation: municipal officials could not be treated as members of the State Administration and have their rights to organize and form trade unions limited accordingly. 

On the issue of the retroactive annulment of the collective agreement as a result of the Supreme Court’s ruling, the Court based its judgment on ILO Convention No. 98 concerning the right to organize and collective bargaining. It observed that, though this Convention, as indicated in Article 6, does not deal with the position of public servants, the ILO’s Committee of Experts had interpreted this provision as excluding only officials whose activities related to the administration of the State. In the light of these elements, and also of ILO Convention No. 151, the Court considered that its jurisprudence, whereby the right to bargain and reach collective agreements was not an element inherent in Article 11, needed to be reviewed so as to take into account the perceptible evolution in both international law and national legal systems. 

Basing itself on ILO Conventions Nos. 87, 98, and 151, and on the pronouncements of the ILO supervisory bodies, the Court ruled that there had been a violation of Article 11 of the European Convention on Human Rights, on the one hand because of the interference the municipal officials had suffered in exercising their right to found a trade union, on the other because of the retroactive annulment of the collective agreement concluded by the trade union as a result of collective bargaining with the administration.

¹ ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87) (ratified by Turkey on 12.07.1993); ILO Convention No. 98 on the Right to Organise and Collective Bargaining, 1949 (ratified by Turkey on 23.01.1952); ILO Convention on Labour Relations (Public Service), 1978 (No. 151) (ratified by Turkey on 12.07.1993). The European Court of Human Rights also referred to other international instruments ratified by Turkey, such as the European Social Charter, the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights, 1966.

² ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom of Association.

³ ILO Committee of Experts on the Application of Conventions and Recommendations: observation on the application by Turkey of ILO Convention No. 87, published in 2005.

⁴ Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Forth revised edition (Geneva, 1996), paragraph 217. In the updated version of that digest (fifth revised edition of 2006), see paragraph 230.