What is the Prevention of the Exercise of Union Rights? (TCK 118)

Prevention of the exercise of union rights, is a type of offense that penalizes interference with the freedom of association of employees or employers. Regulated under Article 118 of the Turkish Penal Code (TCK), this offense aims to protect both a person's freedom to become a member of a union or not to become a member, and the unions' right to operate freely .

In short, no one can force another person to join a union, resign from a union, participate in or refrain from participating in union activities by force or threats. Likewise, preventing a union's meeting, organization, activity, or work through force, threats, or other unlawful means also constitutes a crime.

This regulation falls under the protection scope of not only labor law but also criminal law, because the right to unionize is a fundamental freedom guaranteed by the Constitution.

Legal Interest Protected Under TCK 118

Individual trade union freedom

The first paragraph of the article protects the individual's will regarding trade unions. A person:

• has the right to join or not to join a trade union,
• has the right to participate or not to participate in the activities of a trade union,
• whether or not to resign from the union,
• whether or not to continue serving in the union administration

must be entirely free in these matters.

To pressure an individual's will in these areas, particularly duress or threat compelling an individual to engage in a certain conduct by means of use is sanctioned under criminal law.

Collective trade union freedom

The second paragraph of the article protects the freedom of activity, no longer of the individual, but directly of the trade union itself. For instance, preventing a union meeting, unlawful interference with the activities of union representatives, or the de facto suspension of a union's organization process may be evaluated within this scope.

In this respect, Article 118 of the TCK is a special criminal norm guaranteeing both individual and collective trade union freedom.

Elements of the Crime of Prevention of the Exercise of Union Rights

Conditions required for the offense to occur within the scope of TCK Article 118/1

In terms of the first paragraph, the following elements are generally required for the offense to occur:

There must be force or threat

The law explicitly force or threat element. Force is the use of physical power. Threat, on the other hand, is intimidating a person with the prospect of suffering harm due to their trade union preference. In practice, statements such as \"if you join the union you will be fired\" or \"if you do not resign from the union we will not let you work here\" in particular may be evaluated within the scope of threats.

The purpose must be to compel the person in trade union matters

Here, pressure aimed at a specific purpose is required, not an ordinary threat. This purpose may be one of the following:

• compelling to join a trade union,
• compelling not to join a trade union,
• compelling to participate in trade union activities,
• compelling not to participate in union activities,
• compelling to resign from the union,
• compelling to resign from a position in the union management.

It is not required for the consequence to materialize

A very crucial point regarding this crime is that: Even if the person does not actually resign from the union, or even if they do not yield to the pressure, the crime may still be constituted. According to the established jurisprudence of the Yargıtay the use of force or threats, may be sufficient for the completion of the crime.

Conditions required for the occurrence of the crime within the scope of TCK 118/2

The second paragraph has a broader scope of protection. Here, not only force or threats, another unlawful conduct may also lead to the commission of the crime.

Union activity must be impeded

What is important in this paragraph is that a legal activity of a union is actually targeted. For example:

• preventing a union meeting from taking place,
• de facto sabotaging of union organization,
• unlawful obstruction of the work of union representatives,
• locking the meeting venue,
• cutting off technical equipment or dispersing the meeting

such actions may be discussed within this scope.

Unlawful conduct may be sufficient

Unlike the first paragraph, the second paragraph does not solely require duress or threat. In addition to these, through another unlawful act the crime may also be committed. Therefore, the second paragraph may find a broader scope of application in practice.

Penalty for the Crime of Prevention of the Exercise of Union Rights

Regarding the first paragraph, the penalty

pursuant to TCK Article 118/1, regarding a person's preferences concerning union membership the person who coerces by force or threats, imprisonment from six months to two years shall be punished.

With respect to the second paragraph, the penalty

Pursuant to Article 118/2 of the TCK, any person who obstructs the activities of a trade union through force, threats, or other unlawful conduct, imprisonment from one to three years shall be punished.

Factors that may affect the sentence

Depending on the specific circumstances of the case, other criminal norms may also apply. For instance, if other crimes such as threats, assault, property damage, or deprivation of liberty are committed during the act, separate liability may arise for these offenses. Circumstances such as acting in concert with multiple persons or the abuse of public power must also be evaluated separately.

Obstruction of the Exercise of Trade Union Rights According to the Yargıtay

The occurrence of the result is not required

One of the most important points emphasized in the decisions of the Yargıtay is that it is not a requirement for the victim to actually resign from the trade union or abandon trade union activities. If a person is subjected to force or threats with the intent to influence their trade union preference, the crime may be deemed committed.

Threats are considered psychological coercion

The Court of Cassation evaluates threats as psychological coercion. In particular, economic pressure tools used in employment relationships, threats of dismissal, threats of disciplinary investigation, or actual pressures may constitute the elements of the crime depending on the specific circumstances of the case.

Freedom of association is interpreted broadly

Both in the approach of the AYM and the Court of Cassation, the importance of the right to unionize within a democratic society is taken into account. Therefore, evidence in investigations and prosecutions must be evaluated by considering the weight of freedom of association.

Relationship Between Labor Law and Criminal Law

Criminal lawsuits and compensation proceedings are distinct

The violation of trade union rights does not only give rise to criminal liability. The same incident may also produce consequences under labor law. Particularly pursuant to Article 25 of Law No. 6356:

• discrimination on grounds of union activities,
• termination on grounds of union activities,
• union compensation,
• reinstatement lawsuit

and similar legal remedies may additionally be brought forward.

Therefore, in the same incident, both criminal complaint to the public prosecutor's office, as well as filing a lawsuit in the labor court may be possible. Criminal investigation and the lawsuit for employment claims or union compensation are distinct processes from one another.

Not every union dispute is automatically a criminal offense

An important point to note here is as follows: Not every workplace dispute or union disagreement directly constitutes a crime within the scope of TCK 118. For criminal liability, the elements specifically stated in the law, namely duress, threat or in terms of the second paragraph another unlawful conduct must be concretely demonstrated.

What Should Be Done in Case of Prevention of the Exercise of Union Rights?

The criminal complaint may be evaluated

If coercion, threats, or unlawful obstruction exist in the specific case, a criminal complaint may be filed with the Office of the Chief Public Prosecutor. The content of the complaint must describe the events chronologically, clearly, and concretely.

Labor law rights must also be examined separately.

If the incident also constitutes termination based on union affiliation or discrimination, potential lawsuits to be filed in the labor court must be evaluated separately. Therefore, it is necessary to examine not only the criminal aspect but also the labor law aspect.

FREQUENTLY ASKED QUESTIONS

1) What is the crime of preventing the exercise of union rights?

It is the crime committed when a person is coerced by force or threats to become or not become a member of a union, or to participate or not participate in union activities, as well as when the activities of a union are prevented through force, threats, or other unlawful behaviors.

2) Is it a crime to coerce someone to resign from a union?

Yes. The use of force or threats with the intent to coerce a person to resign from a union may constitute a crime within the scope of Article 118/1 of the TCK.

3) Is the threat of dismissal considered a union-related crime?

Depending on the specific circumstances of the case, yes. Statements such as "if you join the union, you will be fired" or "if you do not resign from the union, we will fire you" may constitute the element of threat.

4) Is it required for the employee to actually resign from the union for the crime to be committed?

No. According to the precedents of the Court of Cassation (Yargıtay), it is not a requirement that the victim actually resigns from the union or ceases to participate in its activities. The use of threats or force may be sufficient for the completion of the crime.

5) Which paragraph does the prevention of a union meeting fall under?

This situation is mostly evaluated within the scope of Article 118/2 of the TCK. This is because what is at stake here is not the individual's preference, but the direct obstruction of the union's activity.

6) What is the penalty for this crime?

Regarding the first paragraph, the penalty imprisonment from six months to two years, and with respect to the second paragraph, imprisonment from one year to three years .

7) Can only a criminal lawsuit be filed in the event of union pressure?

No. Depending on the nature of the incident, both a criminal complaint may be filed with the prosecutor's office and lawsuits for reinstatement, union compensation, or discrimination-based claims can be filed in the labor court.

Conclusion

Prevention of the exercise of union rights, is an important criminal law provision protecting the free will of employees and unions. Compelling a person to join, leave, or refrain from union activities, or unlawfully obstructing the activities of a union, entails serious legal consequences.

Particularly, union pressure, threats, and intimidation behaviors arising within employment relationships may constitute not only a violation of labor law but also a crime under criminal law. Therefore, the specific incident must be carefully evaluated along with its evidence.

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