ILO Convention;¹ Work of international supervisory bodies²

Freedom of association/ Right to strike/ Prohibition of meeting/ Interpretation of Article 11 of the European Convention of Human Rights in the light of international law/ 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

Some Turkish civil servants working in the land registry and energy sectors and in the infrastructure and motorway construction departments had founded a trade union which subsequently joined the Federation of public-sector trade unions. In 1996, five days before actions planned by this Federation to achieve recognition of the right to a collective agreement for civil servants, the Turkish government published a circular banning civil servants from taking part in meetings involving strike action. Some members of the trade union, having taken part in these strike and made statements to the press, had disciplinary measures imposed on them. Approached by the trade union with an application to have the circular quashed, the Council of State rejected its petition. On appeal by the trade union, the Plenary Assembly of the Council of State confirmed the earlier ruling. 

The trade union then submitted its case to the European Court of Human Rights, claiming that the Turkish Republic had violated Articles 11 and 14 of the European Convention on Human Rights.

Applying the principles of interpretation set out in its ruling in the case of Demir v Baykara/Turkey, the Court supported its decision by taking into account elements of international law drawn from sources other than the European Convention on Human Rights.  Having affirmed that the strike, which enabled the trade union to make its voice heard, was an important factor in enabling the trade-union members to protect their interests, the Court referred to ILO Convention No. 87. It noted that the right to strike is recognized by the supervisory bodies of the International Labour Organization as an indissociable corollary to the right of freedom of association protected by ILO Convention No. 87.  

Interpreting Article 11 in the light of these principles, the Court affirmed that, though a prohibition on the right to strike might be applied to certain categories of civil servant, it could not be extended to civil servants in general, as in the present case, nor to the public-sector workers of State-owned commercial or industrial enterprises. The Court added that the circular, drafted in general terms, placed an absolute prohibition on the right to strike for all civil servants, without Turkey having demonstrated the need, in a democratic society, for such a restriction and for criminalizing such activity. 

Its use of elements of international law other than the European Convention on Human Rights therefore led the Court to conclude that adoption of the 1996 circular and its application by Turkey was not in response to “an overriding social need” and had consequently detracted from the petitioning trade union’s effective enjoyment of the rights enshrined in Article 11 of the Convention. 

¹ ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87) (ratified by Turkey on 12.07.1993)

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