İş ve Çalışma Hürriyetini İhlal Suçu (TCK m. 117)

Although the freedom to work is accepted as a fundamental right and finds its place in the basic international human-rights instruments and in the Constitution, criticism has been directed at its insufficient protection in the Turkish Criminal Code; Article 117 of the Code, in which the freedom is regulated, was therefore chosen as the subject of examination.

Article 117 bears the heading "Violation of the Freedom of Work and Labour". Its first paragraph criminalises the violation of the freedom of work and labour in general; the second, employing a person without pay or at a manifestly low wage, or subjecting a person to working and lodging conditions incompatible with human dignity; the third, supplying, dispatching or transporting persons in order to place them in the situations described in the second paragraph; and the final paragraph, compelling the increase or reduction of wages or the alteration of the terms of an agreement, and causing work to stop or end.

Although each paragraph of Article 117 was assessed as in essence a distinct offence, the paragraphs share so many common elements that, to avoid repetition, the assessment proceeds comparatively under common headings rather than under separate ones. In the course of the assessment, views are also set out as to how the new text ought to read; the conclusion reached is that the provision requires redrafting.

Citing illustrative decisions of the Court of Cassation, the article criticises the view that Article 117 does not regulate the freedom not to work, and establishes that the provision covers that freedom as well.

A comparison is also drawn with the former Criminal Code (Law No. 765). Of the four offences in Article 117, only two run parallel to the former Code: Article 117/1 corresponds to the offence of obstructing or abolishing the freedom of work and labour in Article 201/1 of the former Code; Article 117/4 to the offence of compelling the abandonment of work in Article 201/2 (with an enlarged scope). The provision of Article 117/2 on the exploitation of the labour of persons in a desperate situation, and Article 117/3, which erects the preparatory acts for that offence into an independent offence, are emphasised as new acquisitions of the Turkish legal system. The absence from the new Code of the offence of "occupation of a workplace" in Article 201/3 of the former Code is found to constitute no deficiency, since the acts in question already fall within Article 117.

The assessment draws on court decisions and theoretical views, and personal views are also put forward.