Sensitive or controversial issues

• Author: Karan, Ula?
• Pages: 111-112

111

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

The directives have not (yet) been transposed to national law.

11.2 Other issues of concern

Although the directives have not (yet) been transposed into national law, the following

issues raise concern.

- The overarching issue of concern is the rapid eradication of democracy and the rule

of law in Turkey. The backsliding continued in 2019.

- The Government’s preoccupation with ‘counter-terrorism’ and the effective halt of

the EU accession process has led human rights reforms, including in the area of anti-

discrimination, to be entirely dropped from the agenda of public institutions.

- The equality body also fulfils the function of national pr evention mechanism on

torture and national human rights institution, which may dilute its strength and

effectiveness.

- The equality body’s independence has not been ensured in line with the Paris

Principles and the EU acquis.

- The equality body became operational after considerable delay. Rather than

combating discrimination, the Institution often uses discriminatory discourse. The

Institution carries out activities largely from a conservative perspective and in a way

that contradicts universal human rights values.

- The grounds of anti-discrimination in the Law on the Human Rights and Equality

Institution of Turkey, the Constitution and various laws still do not explicitly include

sexual orientation, although the Constitutional Court ruled that it is included in the

open-ended list of non-discrimination grounds. In a decision in 2019, the Institution

explicitly refused to examine a complaint regarding discrimination based on gender

identity.

- The scope of the duty to provide reasonable accommodation is more limited than the

Employment Equality Directive 2000/78/EC. The test regarding reasonable

accommodation is non-existent: consequently, there is no guidance for labour

inspectors, judges, employers and persons with disabilities.

- There is no specific prohibition regarding discrimination by association or hate

speech.

- The Law on the Human Rights and Equality Institution of Turkey and the Law on

Disabilities do not elaborate on what can be considered a legitimate aim for the

purpose of objective justification of indirect discrimination.

- Sanctions are not explicitly mentioned in various laws containing anti-discrimination

provisions. Where they are mentioned, they are not dissuasive, proportional and

effective. Violations that are criminal offences are punishable with short prison

sentences, which are often convertible to small fines and inapplicable in practice.

- The Constitutional Court’s narrow interpretation of Article 10 of the Constitution,

restricting it to the rights and freedoms enshrined in the European Convention on

Human Rights. limits the application of the equality clause beyond the protection

afforded by the European Court of Human Rights.

- Turkish law does not recognise the standing of NGOs to bring claims in support of

victims of discrimination, and standing to act on behalf of victims is granted only to

trade unions and consumer protection associations.

- The mandates of the national and local human rights bodies and the Ombudsman

Institution do not explicitly refer to protection from discrimination and offer limited

possibilities for intervention and influence. Provincial and district human rights bodies

have been ineffective and inactive for years. The accessibility and awareness of the

Ombudsman Institution is low.