Personal and material scope

• Author: Karan, Ula?
• Pages: 37-73

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3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU and non-EU nationals (Recital 13 and Article 3(2), Directive 2000/43

and Recital 12 and Article 3(2), Directive 2000/78)

In Turkey, the following residence/citizenship/nationality requirements are applied for

protection under the relevant national laws transposing the directives.

Difference in treatment of non-citizens resulting from their specific conditions and legal

status regarding their entry and residence in the country is set forth as an exception for

discrimination claims in Article 7(1)(g) of the Law on the Human Rights and Equality

Institution. Hence, undocumented/irregular immigrants are not protected under Turkish

law.

3.1.2 Natural and legal persons (Recital 16, Directive 2000/43)

a) Protection against discrimination

In Turkey, the personal scope of anti-discrimination law covers natural and legal persons

for the purpose of protection against discrimination. The definitions of direct and indirect

discrimination and discrimination by assumption in Article 2(d), (e) and (m) of the Law on

the Human Rights and Equality Institution of Turkey explicitly refer to both natural and

legal persons as objects of such discrimination. The national provisions partly comply with

the directives; as sexual orientation is excluded among the grounds on the basis of which

direct discrimination is prohibited under Article 4(1)(c).

The Law on Persons with Disabilities provides protection against discrimination on the

exclusive ground of disability. Article 4 of this Law, inter alia, bans discrimination against

persons with disabilities and endorses the principles of equal opportunity and accessibility

in ensuring their access to all rights and services and their full and effective participation

in public life. Articles 13, 14 and 15 of this Law express the state’s commitment to

undertake all necessary measures for the occupational rehabilitation, employment and

education of persons with disabilities. The protection provided in the Law on Persons with

Disabilities is applicable only to natural persons.

In addition, Article 3 of the Penal Code, Article 5 of the Labour Law, Article 4 of the Basic

Law on National Education, Article 7 of the Law on Civil Servants, Article 68 of the Civil

Code, Article 12 of the Law on Political Parties, Article 8(e) of the Law on the Foundation

and Broadcasting of Radio and Television, Article 4(d) of the Law on Social Services and

Article 2(1) of the Law on the Execution of Penalties and Security Measures also provide

protection against discrimination for natural persons only.

b) Liability for discrimination

In Turkey, the personal scope of anti-discrimination law covers natural and legal persons

for the purpose of liability for discrimination.

Article 3(4) of the Law on the Human Rights and Equality Institution of Turkey states that

natural and legal persons are under an obligation to ‘identify and remove discrimination

and ensure equality in areas falling under their scope of authority’. Article 5(1) prohibits

natural and legal persons to discriminate in the provision of services in the fields of

‘education, justice, law enforcement, health, transportation, communication, social

security, social services, social assistance, sports, accommodation, culture, tourism and

the like’. Article 5(3) prohibits natural and legal persons from discriminating in provision

of goods for sale, purchase or rent.

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Various laws have provisions on anti-discrimination, the scope of which is limited to the

areas/sectors they govern – for example, Article 5(1) of the Labour Law and Article 8(e)

of the Law on the Foundation and Broadcasting of Radio and Television. In most cases,

these provisions do not explicitly distinguish between natural persons and legal persons,

which gives rise to the assumption that both natural and legal persons can be held liable

for discrimination where the related provision is applicable. There is limited case law

confirming the protection of natural persons110 and legal persons111 against discrimination.

Civil law explicitly refers to the distinction between natural and legal persons. Article 48 of

the Civil Code, Article 68 of which prohibits associations from discriminating among its

members based on the grounds enumerated, stipulates that legal persons have all the

rights and obligations other than those which are tied to qualities that are specific to natural

persons (such as birth and age).

Criminal law contains an explicit reference to legal persons, exempting them from criminal

liability. According to Article 20(2) of the Turkish Penal Code, ‘no punitive sanctions may

be imposed on legal persons’. However, sanctions in the form of ‘security precautions’

stipulated in the law are reserved.112 On the other hand, the provisions that relate to

discrimination, such as Article 105 or Article 122, are not applicable.

In certain situations, natural persons can be held liable for discrimination along with a legal

person. For example, criminal charges can be brought against a person working in the

human resources department of a company, while a civil case for compensation against

the company can brought to the courts.

With regard to protection against discrimination, the various laws containing anti-

discrimination provisions again do not make an explicit distinction between natural and

legal persons. However, the object of protection against discrimination is the individual

person.

3.1.3 Private and public sector including public bodies (Article 3(1))

a) Protection against discrimination

In Turkey, the personal scope of national anti-discrimination law covers the private and

public sectors, including public bodies, for the purpose of protection against discrimination.

The personal scope of national law covers private and public sectors, including public

bodies, for the purpose of protection against discrimination.

The legislative framework that prohibits public bodies from engaging in discrimination is

as follows:

Article 10(5) of the Constitution obliges public bodies to act in compliance with the principle

of equality before the law in all their proceedings and, as a directly applicable provision, it

provides constitutional protection for all. Article 5(1) and (3) of the Law on the Human

Rights and Equality Institution, which prohibits public bodies from discriminating in the

provision of ‘education, judicial, law enforcement, health, transportation, communication,

110 Constitutional Court, Tuğba Arslan, Application No. 2014/256, 25 June 2014 (finding that the barring of a

lawyer wearing a headscarf in courtroom constitutes discrimination). For more, see Introduction.

111 Constitutional Court, Reis Otomotiv Ticaret ve Sanayi A.S., Application No. 2015/6728, 1 February 2018.

112 ‘Security precautions’ are sometimes alternatives to typical criminal sanctions (imprisonment, fine etc.), and

sometimes complementary to sanctions. ‘Security precautions’ can be anything from rehab to community

service. According to the new Turkish Penal Code, legal persons can also be held responsible for crimes. As

imprisonment is not an option for legal persons, the law says that security precautions can be imposed by

the courts. If the organs or representatives of a legal person are involved in a crime, the court might decide,

for example, that the licence of the legal person is to be suspended, or that certain properties which are

fruits of the crime can be confiscated etc.

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social security, social services, social assistance, sports, accommodation, culture, tourism

and the like’, and in the sale, purchase and rent of goods, respectively; Article 7 of the Law

on Civil Servants, which prohibits civil servants from discriminating in the course of their

duties on the basis of language, gender, race, political view, philosophical belief, religion

or sect, and Article 125, which provides disciplinary sanctions to civil servants who engage

in discrimination; Article 18 of the Turkish Armed Forces Discipline Law and Article 8(6)(a)

of the Law on Adoption of the Decree Law on General Law Enforcement Discipline

Provisions, which provides for disciplinary sanctions against army members and law

enforcement officers who engage in discrimination; and Article 4(d) of the Law on Social

Services, which prohibits discrimination in the execution and provision of social services on

grounds of class, race, language, religion, sect or religious differences are relevant laws

that cover the public sector, including public bodies, for the purpose of protection against

discrimination.

In regard to discrimination in the private sector, the following laws apply:

The above-mentioned Article 5(1) and (3) of the Law on the Human Rights and Equality

Institution of Turkey; Article 5 of the Labour Law, which prohibits discrimination on the

grounds of language, race, gender, political thought, philosophical belief, religion, sect and

similar grounds in employment relations; Articles 12, 82 and 83 of the Law on Political

Parties, which prohibit discrimination against applicants for membership of political parties

on grounds of language, race, gender, religion, sect, family, group, class or profession,

and prevent political parties from pursuing the aims of racism and from engaging in

discrimination on grounds of language, race, colour, gender, political opinion, philosophical

belief, religion and sect, or other similar considerations; Article 30 of the Law on

Associations, which prohibits the establishment of associations for objectives prohibited

under the Constitution and laws, which includes discrimination; Article 68 of the Civil Code,

which prohibits discrimination among members of associations on the basis of language,

race, gender, religion, sect, family, group or class; and Article 122 of the Penal Code, which

prohibits hate acts based on language, race, nationality, colour, gender, disability, political

opinion, philosophical belief, religion or sect in the sale or transfer of goods, the execution

of a service, employment, the provision of food services and the undertaking of economic

activity, are relevant laws that cover the private sector for the purpose of protection against

discrimination.

b) Liability for discrimination

In Turkey, the personal scope of anti-discrimination law covers the private and public

sectors, including public bodies, for the purpose of liability for discrimination.

Article 3(3) of the Law on the Human Rights and Equality Institution of Turkey makes public

bodies liable for discrimination, while Article 3(4) imposes such liability on the private

sector as well. The above-mentioned laws that prohibit discrimination in the private and

public sectors, including public bodies, also provide for various sanctions – civil, criminal

or disciplinary – on those who are held to be liable for discriminatory treatment.

3.2 Material scope

3.2.1 Employment, self-employment and occupation

In Turkey, national legislation does not apply to all sectors of private and public

employment, self-employment and occupation, including contract work, military service

and holding statutory office, for the five grounds.

Article 6 of the Law on the Human Rights and Equality Institution of Turkey prohibits

discrimination in the private and public employment sectors and self-employment,