Case of European Court of Human Rights, November 12, 2008 (case CASE OF DEMIR AND BAYKARA v. TURKEY)

President:mber 2006 the Chamber, consisting of J.-P. Costa
Resolution Date:November 12, 2008



(Application no. 34503/97)



12 November 2008

This judgment is final but it may be subject to editorial revision.

In the case of Demir and Baykara v. Turkey,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Christos Rozakis, President,

Nicolas Bratza,

Françoise Tulkens,

Josep Casadevall,

Giovanni Bonello,

Rıza Türmen,

Kristaq Traja,

Boštjan M. Zupančič,

Vladimiro Zagrebelsky,

Stanislav Pavlovschi,

Lech Garlicki,

Alvina Gyulumyan,

Ljiljana Mijović,

Dean Spielmann,

Ján Šikuta,

Mark Villiger,

Päivi Hirvelä, judges,

and Michael O'Boyle, Deputy Registrar,

Having deliberated in private on 16 January 2008 and 15 October 2008,

Delivers the following judgment, which was adopted on the last-mentioned date:


1. The case originated in an application (no. 34503/97) against the Republic of Turkey lodged with the European Commission of Human Rights ("the Commission") under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Turkish nationals, Mr Kemal Demir and Mrs Vicdan Baykara ("the applicants"), the latter in her capacity as president of the trade union Tüm Bel Sen, on 8 October 1996.

2. The applicants were represented by Mr S. Karaduman, a lawyer practising in Ankara. The Turkish Government ("the Government") were represented by their Co-Agent, Mrs Deniz Akçay.

3. The applicants complained that, in breach of Article 11 of the Convention, by itself or in conjunction with Article 14, that the domestic courts had denied them, first, the right to form trade unions and, second, the right to engage in collective bargaining and enter into collective agreements.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

6. By a decision of 23 September 2004 the Chamber declared the application partly admissible and partly inadmissible.

7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1)

8. On 21 November 2006 the Chamber, consisting of J.-P. Costa, President, I. Cabral Barreto, R. Türmen, M. Ugrekhelidze, A. Mularoni, E. Fura-Sandström, D. Popović, judges, and S. Dollé, Section Registrar, delivered its judgment. It held, unanimously, that there had been a violation of Article 11 of the Convention in so far as the domestic courts had refused to recognise the legal personality of the trade union Tüm Bel Sen and had considered null and void the collective agreement between that trade union and Gaziantep Municipal Council, and that there was no need for a separate examination of the complaints under Article 14 of the Convention. The concurring opinion of Mr Türmen, Mrs Fura-Sandström and Mr Popović was annexed to that judgment.

9. On 21 February 2007 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73.

10. A panel of the Grand Chamber granted that request on 23 May 2007.

11. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

12. The applicants and the Government each filed a memorial.

13. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 January 2008 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government

Mrs D. Akçay, Co-Agent,

Mrs E. Demir,

Mrs Z.G. Acar,

Mrs İ. Altintaş,

Mrs E. Esin,

Mrs Ö. Gazialem,

Mr K. Afşin,

Mr L. Savran, Advisers;

(b) for the applicants

Mrs V. Baykara, applicant and president of the trade union Tüm Bel Sen,

Mrs S. Karaduman, of the Ankara Bar.

The Court heard addresses by Mrs S. Karaduman, Mrs V. Baykara and Mrs D. Akçay.


14. The applicants, Kemal Demir and Vicdan Baykara, were born in 1951 and 1958 and live in Gaziantep and Istanbul respectively. The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its president.


    15. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under Article 2 of its constitution, the union's objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims. Its head office is located in Istanbul.

    16. On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council's employees, such as salaries, allowances and welfare services.

    17. As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular financial obligations, the second applicant, as president of the union, brought civil proceedings against it in the Gaziantep District Court (the "District Court") on 18 June 1993.

    18. In a judgment of 22 June 1994 the District Court found in favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed on points of law.

    19. On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court's judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood.

    20. In arriving at this conclusion, the Court of Cassation took into account the special relationship between civil servants and the public administration as regards recruitment, the nature and scope of the work concerned, and the privileges and guarantees afforded to officials by virtue of their status. It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take strike or lock-out action, could not apply to relations between civil servants and a public administration. Any agreement of a "collective" nature between civil servants' unions and a public administration had to be grounded in specific legislation.

    21. In a judgment of 28 March 1995 the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation which had already been ratified by Turkey and which, by virtue of the Constitution, were directly applicable in domestic law.

    22. Among other things the District Court indicated, firstly, that the trade union Tüm Bel Sen was a legally-established entity which had filed its constitution with the provincial governor's office a long time before and which, since then, had carried on its activities without the slightest intervention by the competent authorities. The court added that, on this matter, there was no discrepancy between its judgment and that of the Fourth Civil Division of the Court of Cassation.

    23. As regards the right of civil servants to enter into collective agreements, the court considered that, even if there was an omission in Turkish law on this point, the court to which a dispute was referred had an obligation, under Article 1 of the Civil Code, to make good the omission itself and to adjudicate the case. In the court's view, the same obligation also arose from Article 36 of the Constitution, under which everyone was afforded the right of access to a court. In this context the relevant provisions of the ILO international labour conventions ratified by Turkey had to be applied in the case, even though the specific national laws had not yet been enacted by the legislature. Directly applying the relevant provisions of these international instruments ratified by Turkey, the court considered that the applicant trade union did have the right to enter into collective agreements.

    24. As to the question whether the validity of the collective agreement in question was affected by the fact that it had not been provided for by any legislation at the time it was entered into, the court considered that, since it concerned employer-employee relations, the agreement was of a private-law nature. In the context of the limits imposed by Articles 19 and 20 of the Code of Obligations, namely compliance with statutory provisions, customary law, morals and public order, the parties had been freely entitled to determine the content of this collective agreement. An examination of the text of the collective agreement in question did not reveal any contradiction with those requirements. Consequently, the court found that the collective agreement between the applicant union and the Gaziantep Municipal Council had been a valid legal instrument with binding effect for the parties.

    25. The court awarded Mr Kemal Demir a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question.

    26. In a judgment of 6 December 1995 the Court of Cassation (combined civil divisions) quashed the District Court's judgment of 28 March 1995. It found that certain rights and freedoms mentioned in the Constitution were directly applicable to litigants, whereas others were not. In fact, the...

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