Press Release No: Individual Application 73/20

Press Release concerning the Judgment Finding a Violation of the Right to Union due to the Refusal to Grant Leave for an Investigation against an Administrator Allegedly Exerting Pressure on the Unionised Employees

On 30 September 2020, the Second Section of the Constitutional Court found a violation of the right to union, safeguarded by Article 51 of the Constitution, in the individual application lodged by Public Services Employees Union of Turkey (“Türkiye Genel Hizmetler İşçileri Sendikası”) (no. 2016/14475).

The Facts

The applicant union was authorised by the Ministry of Labour and Social Security to execute a collective bargaining agreement. According to the applicant union, the Deputy Mayor ordered the unionised employees to immediately resign from the union and informed that or otherwise, their places of work and tasks would be changed and ultimately their employment contract would be terminated. It was maintained that as the employees refused to resign, the employment contract of the union’s representative at that workplace was terminated. At the end of the proceedings, the incumbent civil court ordered the reinstatement of the union’s representative to his post, stating that his employment contract had been terminated for union-related reasons. The actions brought by two other employees, who had been also dismissed by the Municipality, for their reinstatement were also concluded in their favour as their dismissal was also based on union-related reasons.  

The applicant union filed a criminal complaint before the incumbent chief public prosecutor’s office (“prosecutor’s office”) against the Deputy Mayor for his having precluded the exercise of union-related rights. However, the District Governor’s Office refused to grant leave for an investigation on the matter. Upon the rejection, by the regional administrative court, of the applicant union’s challenge to the decision granting no leave, the applicant union lodged an individual application.

The Applicant’s Allegations

The applicant union maintained that the right to union had been violated, noting that it had been precluded from conducting union-related activities as well as from being organised at the relevant municipality due to the refusal to grant leave for an investigation against the Deputy Mayor, allegedly exerting pressure on the employees in order to force them to leave the union.

The Court’s Assessment

The dispute in the present case concerns the allegation that the criminal complaint, filed with the prosecutor’s office as the unionised employees had been allegedly subjected to pressure, by the Deputy Mayor, to end their union membership and that their places of work had been changed or employment contracts had been terminated to that end, remained inconclusive due to the relevant authority’s refusal to grant leave for an investigation. 

In the decision granting no leave for an investigation, which was issued by the District Governor’s Office, it was stated that the acts and actions performed by the Municipality did not amount to a hindrance to the exercise of the union-related rights. Besides, the regional administrative court rejected the applicant union’s challenge on the same grounds. 

The right to union enables the employees to freely establish trade unions, to become a union member of their own free will without having any concern and to engage in union-related activities. In this sense, Article 25 of Law no. 6356 embodies significant safeguards for the union-related activities of the employees. This provision prohibits the employees’ dismissal from work or being subjected to different procedures for having engaged in union-related activities. Besides, Article 78 of the same Law secures the union-related rights by envisaging to impose administrative fines on those who have unlawfully registered members or who have forced the union members to maintain or to end their membership.

In the present case, the prosecutor’s office initiated an investigation upon the complaint raised by the applicant union and the unionised employees of the relevant municipality. According to certain statements, the Deputy Mayor had obtained e-state passwords of some employees and thereby terminated their union membership and changed the places of work of some employees who had refused to leave the union. At the end of the action brought by the union representative for his reinstatement, it was ascertained that his employment contract had been terminated for union-related reasons, which was also found established through the actions brought by the other two employees.

Given these considerations as a whole, the Court has considered that the decisions -whereby no leave for an investigation was granted and the applicant union’s subsequent challenge was dismissed- lacked sufficient reasoning to prove that the positive obligations incumbent on the State by virtue of the right to union had been fulfilled. It has been accordingly concluded that the manner in which the public authorities conducted the investigation was not capable of having a deterrent effect to prevent unjustified interferences with the right to union.

Consequently, the Court has found a violation of the right to union safeguarded by Article 51 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.