Violation of freedom to work in Turkish criminal law(Article 117 of the Turkish Penal Code No. 5237)

As an activity that ensures the livelihood and security of individuals and their families, work is at the center of most people's lives. In order for people to carry out their work activities, they must be granted the right and freedom to work. There are many provisions in international legal instruments to protect the rights and freedoms of individuals to work. In particular, the International Labor Organization has been working intensively on this issue. In accordance with the international instruments, which contain repetitive and affirming provisions, Our Constitution also contains provisions protecting the right and freedom to work. As in many other rights and freedoms, when there are serious situations against the right and freedom to work; when international texts, constitutional provisions, measures to be taken by the state and private law provisions are insufficient to provide the necessary protection, it is seen that criminal law is resorted to as a last remedy. Within this framework, the branch of law that works on the protection of the right and freedom to work through criminal norms is criminal labor law. Considering the historical development of criminal labor law; it is seen that the first regulations considered within the scope of the relevant branch of law protected only employers, but today, there are criminal norms that protect all workers, regardless of their status or title. In Turkish Law, there are also various criminal norms regulated directly or indirectly with the aim of protecting the right and freedom to work. Turkish Criminal Code No. 5237 Article 117 titled "Violation of the Freedom of Work and Labor", which is included in the seventh section titled "Crimes against Liberty" of the second part titled "Crimes against Persons" of the second book titled "Special Provisions", is the main criminal labor law regulation in Turkish law. Article 117 of the Turkish Criminal Code includes five different crimes that protect the right and freedom to work in various aspects. In the first part of our study titled "PROTECTION OF THE RIGHT AND FREEDOM TO WORK BY CRIMINAL NORMS"; firstly, the concepts of the right and freedom to work will be explained, and within this framework, international instruments adopted under the authority of the International Labor Organization, the United Nations, the Council of Europe and the European Union for the protection of this right and freedom, as well as the constitutional regulations that have been included in our law since the Kanun-ı Esasi adopted in 1876, will be evaluated. After briefly examining the relevant provisions of the Kanun-ı Esasi, the 1921 Constitution and the 1924 Constitution, the provisions of the 1961 Constitution and the 1982 Constitution on the right and freedom to work are explained in more detail under separate subheadings. Afterwards, the criminal labor law is examined conceptually; within this framework, information on the historical development of the criminal labor law is given and the provisions of the Turkish Criminal Code No. 765 and the Turkish Criminal Code No. 5237, which can be evaluated within this scope, are presented. In the last section of the first part of our study, the differences between Article 117 of the Turkish Criminal Code No. 5237, which we examined in detail in the second part of our study, and Article 201 of the Turkish Criminal Code No. 765, which is the equivalent of this provision in the Turkish Criminal Code No. 765, were mentioned and a comparison of these two provisions was made. In the second part of our study titled "CRIMES REGULATED IN ARTICLE 117 OF THE TPC NUMBER 5237", the crimes under Article 117 of the Turkish Penal Code, which is the basic criminal norm that protects the right and freedom to work in our law, are examined. Article 117 of the Turkish Penal Code includes five different offenses. These crimes are; the crime of violation of freedom of work, the crime of labor exploitation, the crime of supplying, dispatching or transporting for labor exploitation, the crime of forcing to change the terms of the agreement and the crime of preventing the continuation of work. Under separate sub-headings, the legal benefit protected by each crime, the offender and victim of each crime, the subject matter, the material element, the element of illegality, the moral element, the special forms of appearance such as attempt, participation and aggregation, and the sanctions and procedural rules regarding each crime are examined in detail. In the last section of the part, in terms of the crimes under Article 117 of the Turkish Penal Code, the reasons affecting the fault, unjust provocation and error, and the reasons affecting the punishment are evaluated together, giving priority to the important issues. We would like to point out that the reviews and evaluations in this study are based on the doctrine and judicial decisions on the subject; examples from comparative law are given where necessary, and the regulations and judicial decisions in different countries are also utilized. This is how we prepared our study and it is useful to set out the main conclusions we have reached as a result. The crime of violation of freedom of work regulated under Article 117/1 of the Turkish Criminal Code has a special - general norm relationship with the other crimes regulated in the article. The crime of violation of freedom of work is a general norm compared to the other crimes in the article. This crime may occur in terms of work carried out in accordance with the principles of the law of obligations, labor law or administrative law, as well as in terms of work that constitutes a violation of the law, if the crime is committed through forced labor of the victim. The fact that the crime can be committed by any unlawful act other than the acts of violence and threat specified in the provision, which may or may not constitute a crime, causes the scope of application of the provision to broaden considerably. In this context, since the employer's violation of the obligation to protect the employee against psychological harassment within the employment relationship is an unlawful act in the labor regulations; in our opinion, it is possible that the acts constituting mobbing may also constitute the crime regulated under Article 117/1 of the Turkish Criminal Code. The crime of labor exploitation regulated under Article 117/2 of the Turkish Criminal Code punishes the exploitation of the labor power of certain vulnerable persons. In terms of this crime, it is not possible for the consent of the person concerned regulated in Article 26/2 of the Turkish Criminal Code, which is one of the reasons for compliance with the law, to find an application area; because the consent of the victim is necessary for the occurrence of this crime. The employment of a person against his/her consent does not constitute this crime, but constitutes the crime of violation of the freedom of work regulated under Article 117/1 of the Turkish Criminal Code. Under Article 117/3 of the Turkish Criminal Code, certain acts that are preparatory acts for the crime of labor exploitation under Article 117/2 of the Turkish Criminal Code are regulated as a separate crime. In order for the crime of supplying, dispatching or transporting for labor exploitation regulated under Article 117/3 of the Turkish Penal Code to occur, the consent of the victim is a requirement, as in the case of the crime regulated under Article 117/2 of the Turkish Penal Code. In the doctrine, there is an opinion that it is not really possible to attempt the crime regulated under Article 117/2 of the Turkish Criminal Code in the face of the existence of the crime of procurement, dispatch or transportation for labor exploitation. In Article 117/3 of the Turkish Criminal Code, only some preparatory acts of the crime of labor exploitation are regulated as a separate crime, and the acts constituting the crime regulated in Article 117/3 of the Turkish Criminal Code do not necessarily have to be performed in order to commit the crime regulated in Article 117/2 of the Turkish Criminal Code. Therefore, we do not agree with this opinion. The main issue regarding the crime of supplying, dispatching or transporting for labor exploitation regulated under Article 117/3 of the Turkish Criminal Code is the relationship between this crime and the crime of human trafficking regulated under Article 80 of the Turkish Criminal Code. In our opinion, there is a consuming norm - consumed norm relationship between these two offenses. In this framework, in the face of the existence of Article 80 of the Turkish Criminal Code, it is concluded that Article 117/3 of the Turkish Criminal Code cannot be applied because it is the consuming norm. The crime of forcing to change the terms of the agreement regulated under Article 117/4 of the Turkish Criminal Code specifically protects the freedom of contract. The freedom of contract is protected in terms of individual and collective labor contracts. It is not necessary to change the wage or other terms of the agreement for the crime of forcing to change the terms of the agreement to be considered to have been committed. This crime, which is regulated under Article 117/4 of the Turkish Criminal Code, is completed by resorting to at least one of the instrumental acts of force or threat to force the victim to change the wage or other terms of the agreement. A strike or lockout, provided that they are carried out in accordance with the law, constitute a cause of lawfulness for the crime of forcing the change of the terms of agreement within the framework of the exercise of the right regulated in Article 26/1 of the Turkish Criminal Code, as they are legitimate rights granted to employees and employers by the legislation. On the other hand, if the wage or other conditions in the labor contract are forced to be changed by unlawful exercise of a strike or lockout, the crime of forcing to change the terms of the agreement regulated under Article 117/4 of the Turkish Criminal Code will have been committed. In such a case, since unlawful strike and lockout are regulated as misdemeanors under Turkish law, in accordance with Article 15/3 of the Code of Misdemeanors, the offender will only be sanctioned for the crime of forcing to change the terms of the agreement regulated under Article 117/4 of the Turkish Criminal Code. Another crime regulated under Article 117/4 of the Turkish Penal Code is the crime of preventing the continuation of work. The crime of preventing the continuation of work punishes causing a work to stop, end or continue to stop by resorting to force or threats. The difference between this crime regulated under Article 117/4 of the Turkish Criminal Code and the crime of violation of freedom of work regulated under Article 117/1 of the Turkish Criminal Code should be revealed. While the crime of preventing the continuation of work regulated under Article 117/4 of the Turkish Criminal Code is a crime that may occur when the work of a workplace is prevented as a whole, the crime of violation of freedom of work regulated under Article 117/1 of the Turkish Criminal Code is a crime that may occur when only one person is prevented from working. A strike or lockout, provided that it is carried out in accordance with the law, is a reason for compliance with the law within the framework of the exercise of the right regulated under Article 26/1 of the Turkish Criminal Code, as it is for the crime of forcing to change the terms of the agreement regulated under Article 117/4 of the Turkish Criminal Code. Similarly, as in the case of the crime of forcing to change the terms of the agreement, if the strike or lockout is unlawful, it is possible that the crime of preventing the continuation of work under Article 117/4 of the Turkish Penal Code may arise, and in this case, in accordance with Article 15/3 of the Code of Misdemeanors, the offender shall be punished only for the crime of preventing the continuation of work under Article 117/4 of the Turkish Penal Code. In the situation where an unlawful strike or lockout is resorted to in order to prevent the continuation of the work in addition to forcing the change of wages or other terms of the agreement, and the work is prevented, both crimes regulated under Article 117/4 of the Turkish Criminal Code, the crime of forcing the change of the terms of the agreement and the crime of preventing the continuation of the work, will occur at the same time. In such a case, the offender will have to be punished in accordance with Article 44 of the Turkish Penal Code. The last issue we would like to point out, common to all five crimes regulated under Article 117 of the Turkish Penal Code, is that the sanctions envisaged by the legislator for these crimes are quite light in comparison to the seriousness of the legal purpose they are intended to protect.