17.01.2008, E.2002/71, K.2008/44

Date

:

17.01.2008

Number

:

E.2002/71, K.2008/44

Official Gazette

:

03.04.2008, 27189

Subject

:

Right to strike, Strike, political / Strike, prohibition / Collective bargaining.

Headnotes:

If all workers taking part in strike action are subjected to the same criminal sanctions without considering different possible motives, this violates their right to strike and is contrary to the Constitution.

Summary:

I. Bandirma Criminal Court asked the Constitutional Court to assess the compliance with the Constitution of Article 73 of Law no. 2822 (The Law on Collective Bargaining, Strike and Lockout). Article 73 of Law no. 2822 prohibits strikes aimed at preventing the making, altering or revocation of a decision and strikes in protest against decisions by legislative, executive or judicial organs or central or local authorities. The third paragraph of the article imposes criminal sanctions on those who take part in such unlawful strikes. Article 54 of the Constitution regulates the right to strike and lockout, stipulating that workers are entitled to strike if a dispute arises during the collective bargaining process. The Constitution prohibits "politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, labour go-slows and other forms of obstruction" in Article 54.7.

II. The Constitutional Court ruled that the Constitution recognises the right of workers to strike during the collective bargaining process, in order to protect their interests and to provide better conditions in collective agreement. A legislative act may jeopardise their rights in the collective agreement; they are entitled to defend their rights against such legislative acts. Subjecting all workers participating in a strike protesting against a law on social security to criminal sanctions without considering the various possible motives violates the right to strike and is contrary to the Constitution. The Court accordingly decided unanimously that Article 73.3 of the Law on Collective Bargaining, Strike and Lockout contravened  Articles 2,5 and54 of the Constitution and directed its repeal. Five members of the Court namely, President Mr Kiliç, Judge Mr Erten, Judge Mr Özler, Judge Mr Özgüldür and Judge Mr Apalak agreed with this result for different reasons and put forward concurring opinions.

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