Remedies and enforcement

• Author: Karan, Ula?
• Pages: 85-96

85

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Turkey, the following procedures exist for enforcing the principle of equal treatment:

Discrimination claims are filed through general administrative and legal channels.

Judicial Procedures

In the courts, victims of discrimination can claim compensation for pecuniary damages,

loss of earnings and/or damages for pain and suffering. Parallel proceedings are possible

with regard to criminal, civil or administrative courts. Persons may simultaneously pursue

a civil claim for compensation in the civil or labour courts, an administrative application or

a criminal complaint. If the discriminatory act or action is administrative in nature, before

going to court the victim of discrimination has to request compensation from the

administrative body responsible for the action. The decisions of the courts are binding by

definition.

To obtain a legal remedy, employment-related discrimination claims filed under Article 5

of the Labour Law must be brought before a labour court. There are labour courts that deal

with employment-related issues in every province. On appeal, employment-related

discrimination cases come before the civil chambers of regional courts of appeal. On the

condition that the claim in the civil case is above TRY 58 800 (EUR 7 737), the judgment

of a regional court of appeal may be subjected to a judicial review before the Court of

Cassation (9th Chamber). The possible remedies for termination of a work agreement

based on discrimination may include, but are not limited to, an order to continue the

employment relationship, payment of lost income, compensation etc. An existing labour

relationship is a precondition for bringing a labour lawsuit and those who face

discrimination in the recruitment process cannot take this route. Article 5 does not explicitly

provide that discriminatory provisions in employment contracts shall be null and void – an

issue that ECRI raised in its monitoring reports.314 However, Article 6 of the Law on the

Human Rights and Equality Institution of Turkey prohibits discrimination in the recruitment

process as well and provides for an administrative fine for such acts.

Judicial control of the acts and actions of the governorships, district governorships, local

administrative bodies and provincial administration of ministries and other public

establishments and institutions is undertaken by the administrative courts. According to

Article 125 of the Turkish Constitution ‘all acts and actions of the administration shall be

subject to judicial review’ and ‘the administration shall be liable for the damage caused by

its own acts and actions’. Three principles derived from this provision are as follows: i)

lawsuits need to be filed within a time limit; ii) judicial power is limited to control of the

legality of administrative acts and actions; iii) judicial control cannot eliminate the

discretionary power of the administrative organs. In cases of acts, if the administrative

court finds a violation, it can order the annulment of the administrative act and/or full

compensation. In cases of actions, the remedy is full compensation.

Article 148 of the Constitution guarantees the right of individual application to the

Constitutional Court. The right to file an application requires exhaustion of the national

ordinary legal remedies prior to filing a petition to the Constitutional Court. The scope of

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314 ECRI (2016), Report on Turkey (fifth monitoring cycle), CRI(2016)37, Strasbourg, p. 16, available at:

https://rm.coe.int/fifth-report-on-turkey/16808b5c81.