Tum Haber Sen and Cinar v Turkey</B> - 28602/95 [2010] ECHR 1893 (15 September 2010)

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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 in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the dissolution of the applicant trade union on the sole ground that it had been founded by civil servants (violation of Article 11) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention 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;

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

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

This case concerns the dissolution of the applicant trade union in 1995, solely on the ground that at the material time Turkish law did not allow civil servants to form trade unions, despite Turkey’s ratification of International Labour Organisation Convention No. 87 providing such a right.

The European Court, also considering the European Social Charter, found that such an absolute prohibition did not meet a “pressing social need”, not least as nothing showed that the applicant trade union represented a threat. In view of the lack of clear legislative provisions on the subject and the broad manner in which the Turkish courts had interpreted the restrictions on civil servants’ trade union rights, the Court found that Turkey had failed to comply with its positive obligation to secure the enjoyment of the applicant trade union’s rights (violation of Article 11).

As the applicants submitted no request for just satisfaction within the time-limit, the Court decided not to award any sum in this respect.

Under the new law on civil service unions (see below), the applicant trade union may be re-established. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

The applicant trade union was active from 1992 until May 1995, when it was dissolved. The prohibition on civil servants’ forming trade unions was lifted by legislative amendments made shortly after the facts at the origin of this case.

A number of constitutional and legislative amendments have been made with the aim of allowing civil servants to form trade unions. Articles 51 (as amended in October 2001) and 53 (as amended in July 1995) of the Constitution now allow civil servants to found and to become members of trade unions. Article 53, paragraph 3, provides that “the unions and their higher organisations to be established by civil servants [...], may appeal to the judicial authorities on behalf of their members and may hold collective bargaining meetings with the administration in accordance with their aims”.

In addition, Law No. 4688 on civil service unions, as amended by Law No. 5198 of 24 June 2004, guarantees trade union freedom to civil servants so that they may “defend their economic, social and professional interests” (Article 1 and 14). Article 18 imposes a general prohibition against any discriminatory act by employers which could risk undermining union freedom in employment matters. In particular, dismissing a civil servant on the ground of his or her affiliation to a union or participation in union activities outside working hours (or with the employer’s consent, within working hours) is prohibited by Article 18§1.

The European Court’s judgment in this case was translated into Turkish and sent out to the authorities concerned.

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures 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 on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies

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You are here: BAILII >> Databases >> European Court of Human Rights >> Tum Haber Sen and Cinar v Turkey</B> - 28602/95 [2010] ECHR 1893 (15 September 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1893.html Cite as: [2010] ECHR 1893