General legal framework

• Author: Karan, Ula?
• Pages: 15-16

15

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution of Turkey includes the following articles that deal with non-discrimination.

Article 10, on equality before the law, is a general equality clause. It reads as follows:

‘Everyone is equal before the law without distinction as to language, race, colour,

sex, political opinion, philosophical belief, religion and sect, or any such grounds.

Men and women have equal rights. The State has the obligation to ensure that this

equality exists in practice. Measures taken for this purpose shall not be interpreted

as contrary to the principle of equality.

Measures to be taken for children, the elderly, disabled people, widows and orphans

of martyrs as well as for the invalid and veterans shall not be considered as violation

of the principle of equality.

No privilege shall be granted to any individual, family, group or class.

State organs and administrative authorities are obliged to act in compliance with the

principle of equality before the law in all their proceedings.’

As can be seen from the text, Article 10 explicitly covers the grounds of language, race,

colour, gender, political opinion, philosophical belief, religion and sect, and, given its open-

ended structure, it implicitly covers the remaining grounds with reference to ‘any such

grounds’. Since it is situated in the ‘General Principles’ part of the Constitution, and the

rights and freedoms set forth in the Constitution are wide ranging, this provision applies

to all areas covered by the directives, and its material scope is broader than those of the

directives. However, the personal scope of the provision, as it does not explicitly refer to

sexual orientation and ethnic origin among the grounds of equality, is more limited than

that of the directives. Article 10 was adopted in 1982, and the list that it provides has not

been extended since then. In several individual applications, the excluded grounds were

unsuccessfully invoked in Article 10 claims.31 While the Constitutional Court found these

cases to be inadmissible, it did, in entertaining the applicants’ claims of discrimination,

effectively accept that ethnic origin and sexual orientation are among the prohibited

grounds.32 In an inadmissibility decision in 2017, the Constitutional Court explicitly ruled,

with reference to ECtHR case law, that discrimination on the ground of sexual orientation

is prohibited.33 This was the first ruling in which the Constitutional Court explicitly

recognised sexual orientation as a ground on which discrimination is prohibited. Age and

disability were also overtly acknowledged as prohibited grounds under Article 10 by the

Constitutional Court in 2014.34

Article 10 is directly applicable, and by virtue of Article 11, it can be enforced against

private actors as well as against the state. While not explicitly stating it as such, Article 10

introduces the principle of positive action to the Constitution. It stipulates that measures

to be adopted to ensure equality between men and women, as well as measures to be

31 Constitutional Court, Sadıka Şeker, Application No. 2013/1948, 23 January 2014 (invoking sexual

orientation to argue that the homosexuality of her murdered brother was used as a mitigating factor in the

sentencing of the perpetrator, who was treated more favourably than other individuals convicted of

homicide); Mehmet Çetinkaya and Maide Çetinkaya, Application No. 2013/1280, 28 May 2015 (invoking

ethnic origin to claim that in assessing their compensation claim for the murder of their daughter in a

terrorist attack which specifically targeted people of Kurdish origin, the lower court awarded them damages

lower than those awarded in similar cases of death caused by the negligence of the Administration).

32 Karan, U. (2015), ‘Bireysel Başvuru Kararlarında Ayrımcılık Yasağı ve Eşitlik İlkesi’ (‘The non-discrimination

and equality principle in individual application rulings’), Anayasa Yargısı, vol. 32, p. 249.

33 Constitutional Court, Cemal Duğan, Application No. 2014/19308, 15 February 2017. The Court has used

both the concepts of ‘sexual preference’ and ‘sexual orientation’ in its ruling, which indicates a confusion in

terms of the concepts referred to. As the Court has offered no insight into what it means by ‘sexual

preference’, it seems, considering the ECtHR case law to which the Court has referred, that both terms are

used interchangeably.

34 Constitutional Court, Tuğba Arslan, Application No. 2014/256, 25 June 2014, para. 114.