Demir and Baykara v Turkey
| Demir and Baykara v Turkey | |
|---|---|
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| Court | European Court of Human Rights |
| Decided | 12 November 2008 |
| Citation(s) | [2008] ECHR 1345, (2009) 48 EHRR 54 |
| Transcript(s) | Full text of judgment |
| Court membership | |
| Judge(s) sitting | Judge Rozakis (President); Judges Bratza, Tulkens, Casadevall, Bonello, Türmen, Traja, Zupančič, Zagrebelsky, Pavlovschi, Garlicki, Gyulumyan, Mijović, Spielmann, Šikuta, Villiger, Hirvelä |
| Keywords | |
| Collective bargaining | |
Demir and Baykara v Turkey [2008] ECHR 1345 is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.
Mr Vemal Demir was a member, and Mrs Vicdan Baykara was the president, of the Turkish trade union for civil servants, Tüm Bel Sen. The union signed a two-year collective agreement in 1993, but the employer, the Gaziantep Municipal Council did not comply with its provisions. Demir and Baykara brought proceedings in the District Court, and won their claim. However, on appeal the Court of Cassation quashed the decision. This Court held there was a right to join a union, but the union itself had "no authority to enter into collective agreements as the law stood".
The matter was then remitted to the District Court, which in defiance restated its view that Demir and Baykara did have a right to collective agreements, because this accorded with International Labour Organisation Conventions ratified by Turkey. But again, the Court of Cassation overturned the District Court's decision. Furthermore, a separate claim in the Audit Court had been brought, which found that civil servants had no authority to engage in the collective agreement, and so the civil servants had to get the union to repay extra benefits it had got under the "defunct" collective agreement.
After these domestic avenues were exhausted, in 1996 the union made an application to the European Court of Human Rights, alleging breach of freedom of association under article 11 ECHR and protection against discrimination under article 14 ECHR. After some time, in 2006, the case was heard by seven judges of the second section. It was held that article 11 had been violated, and there was no need to examine article 14. The Turkish Government then requested that the matter be referred to the Grand Chamber.
The Grand Chamber of the European Court of Human Rights held unanimously that there had been a disproportionate and unjustified interference with the right to freedom of association.
"it has not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants ... by Turkish law, as it applied at the material time, met a 'pressing social need'. The mere fact that the 'legislation did not provide for such a possibility' is not sufficient to warrant as radical a measure as the dissolution of a trade union."
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