Information Note on the Court’s case-law No. 155
August-September 2012
Eğitim ve Bilim Emekçileri Sendikası v. Turkey - 20641/05
Judgment 25.9.2012 [Section II]
Article 11
Article 11-1
Freedom of association
Application for trade union’s dissolution for supporting right to education in a mother tongue other than the national language: violation
Article 10
Article 10-1
Freedom of expression
Refusal to allow trade union to campaign for education in a mother tongue other than the national language: violation
Facts – In its statutes the applicant union – the Union of Salaried Employees in Education and Science – defended “the right of all individuals in society, in equality and liberty, to receive democratic, secular, scientific teaching free of charge in their mother tongue”. In February 2002 the area governor asked them to delete the term “mother tongue” because it was incompatible with the Constitution. Then in March 2002 the governor asked the public prosecutor to institute proceedings to have the union dissolved because it had not yet amended its statutes as requested. In July 2002 the applicant union amended the offending paragraph thus: “the right of all individuals in society to receive teaching in their mother tongue”. The public prosecutor discontinued the dissolution proceedings, noting in particular that there had been a lively debate on the matter and that the issue was to be placed on the agenda of a parliamentary session, so it was not the right time to take action to have the union dissolved. In October 2003, at the request of the Armed Forces Chief of Staff, the governor asked the applicant union to delete the offending words from its statutes. He subsequently again approached the public prosecutor to have the union dissolved, and in July 2004 the public prosecutor applied for the union’s dissolution. The Labour Court dismissed the dissolution proceedings, explaining that the wording of the statutes did not jeopardise the territorial integrity of the nation or State, or the existing borders of the Republic of Turkey. The public prosecutor appealed. The Court of Cassation set aside the Labour Court’s judgment but in a second judgment the Labour Court reiterated its initial finding. In July 2005 the union deleted the words “mother tongue” from its statutes.
Law – Article 11: The proceedings brought against the applicant union amounted to interference by the national authorities with the union’s exercise of its right to freedom of association, preventing it from collectively or individually pursuing the aims set forth in its statutes. The interference was prescribed by law and pursued the legitimate aims of preventing disorder and protecting national security and the territorial integrity of the State. It remained to be seen whether the interference was “necessary in a democratic society” to achieve the legitimate aims pursued.
Two sets of proceedings had been brought against the applicant union for defending teaching in the “mother tongue”. The first proceedings were discontinued. In the second, as the Court of Cassation found that the statutes were incompatible with the Constitution and the principle of the unitary State, the union had been obliged to delete the offending words in order to avoid dissolution. However, the offending passage contained no incitement to resort to violence or any other illegal means to achieve its aim. The principle the applicant union defended was not at variance with the fundamental principles of democracy. Furthermore, the offending words had to be viewed in the context of an on-going debate at the material time on the topic of teaching in the mother tongue. Such a proposal might upset certain convictions of the majority population. However, the proper functioning of democracy required public debate in order to help find solutions to questions of general political or public interest. Also, the latest report of the European Committee against Racism and Intolérance (ECRI) on Turkey showed that there were Turkish children whose mother tongue was not Turkish but Adyghe, Abkhaz or Kurdish. In this connection, the Law of 3 August 2002 had made provision for the opening of private lessons to teach languages and dialects other than Turkish. This legislative approach contrasted with the attitude taken by the national courts in considering that the content of the union’s statutes was unconstitutional. The aim professed in the statutes had not threatened national security or public order. The reasons given by the Court of Cassation had not been relevant and sufficient, or proportionate to the legitimate aims pursued. The proceedings to have the applicant union dissolved, which had obliged it to amend the offending passage of its statutes by deleting the words “to receive teaching in their mother tongue”, could not reasonably be regarded as answering a pressing social need.
Conclusion: violation (unanimously).
Article 10: This Article includes freedom to receive and impart information and ideas in any language which affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. The second set of dissolution proceedings against the applicant union amounted to interference by the national authorities with the union’s right to freedom of expression. That interference was prescribed by law and pursued the legitimate aims of preventing disorder and protecting national security and the territorial integrity of the State.
The offending passage from the applicant union’s statutes defended the idea of teaching in the “mother tongue”. In the Turkish context and taking the words at their face value, this provision could be read as defending teaching in Turkish as the mother tongue. Regard being had to the country’s historical and social background, however, the mother tongue could be another language. At the material time the law had been amended to permit private teaching for Turkish nationals in mother tongues other than Turkish. In addition, the offending part of the applicant union’s statutes did not encourage the use of violence, or armed resistance or insurrection, or instil hatred or threaten the territorial integrity of the State. In conclusion, the dissolution proceedings against the union, obliging it to delete the offending words from its statutes, had been disproportionate to the aims pursued and had therefore not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy