The definition of discrimination

AuthorKaran, Ula?
Pages17-36
17
2 THE DEFINITION OF DISCRIMINATION
The Constitutional Court defined equality under Article 10 of the Constitution as follows:
‘The principle of equality, which is among the fundamental principles of law, is
enshrined in Article 10 of the Constitution. Equality before the law applies to persons
whose legal status is the same. This principle aims for de jure equality, not de facto
equality. The aim of the principle of equality is to ensure that persons having the
same status are treated by the law in the same way, as well as to avoid any
differentiation or privileges. This principle requires that the same rules apply to
persons or groups having similar status, thus the principle prohibits violations of
equality before the law. Equality before the law does not require the same rules to
apply to everyone in all situations. Particularities of the status of certain persons or
groups might require different rules or practices to apply. If the same rules apply to
similar situations and different rules apply to different situations, then the principle
of equality enshrined in the Constitution shall not be prejudiced.
If the rule which is claimed to be in contradiction to equality has a legitimate aim or
has been adopted for the purpose of public interest, then it cannot be said that this
rule prejudices the principle of equality.
However, ‘public interest’ or ‘legitimate aim’ should be a) clear b) relevant to the aim
c) reasonable and just. If the rule adopted does not comply with one of these
requirements which complement, support and strengthen each other, then it can be
concluded that it is in contradiction to the principle of equality.’37
The Constitutional Court elaborated on the anti-discrimination principle in June 2014: the
first time that it found the violation of this principle in an individual application. Noting that
the principle of equal treatment and the prohibition of discrimination are ‘concepts used to
refer to the same thing’ and that the former also entails the latter, the Court said that the
principle of non-discrimination
‘entails the provision or rejection of opportunities on the basis of grounds such as
religion, political opinion, sexual and sex identity which are the elements of the
individual’s personality and are based on personal choices or personal traits such as
gender, race, disability and age which cannot be questions of choice under any
circumstance.’38
2.1 Grounds of unlawful discrimination explicitly covered
The following grounds of discrimination are explicitly prohibited in the main legislation
(listed in the Introduction) transposing and implementing the two EU anti-discrimination
37 Constitutional Court, E. 2008/95, K. 2010/18, 28 January 2010.
38 Constitutional Court, Tuğba Arslan, Application No. 2014/256, 25 June 2014, para. 114.
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directives: race,39 language,40 colour,41 gender,42 disability,43 political opinion/thought,44
philosophical belief/opinion,45 religion,46 sect (denomination),47 nationality,48 national
39 Constitution of the Republic of Turkey (hereafter ‘Constitution) (Türkiye Cumhuriyeti Anayasası), 7
November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6 April 2016,
Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article 5(1); Basic
Law on National Education, 14 June 1973, Article 4; Law on Civil Servants, 14 July 1965, Article 7; Civil
Code (Medeni Kanun), 22 November 2001, Article 68; Law on Political Parties (Siyasi Partiler Kanunu), 22
April 1983, Article 12; Law on Social Services (Sosyal Hizmetler Kanunu), 24 May 1983, Article 4(d); Law on
the Execution of Penalties and Security Measures (Ceza ve Güvenlik Tedbirlerinin İnfazı Hakkında Kanun),
13 December 2004, Article 2(1); Law on the Ombudsman Institution (Kamu Denetçiliği Kurumu Kanunu), 29
June 2012, Article 30; Turkish Armed Forces Discipline Law (Türk Silahlı Kuvvetleri Disiplin Kanunu), 31
January 2013, Article 18; Law on Prevention of Violence and Disorder in Sports (Sporda Şiddet ve
Düzensizliğin Önlenmesine Dair Kanun), 14 April 2011, Article 14; Regulation on Minimum Wage (Asgari
Ücret Yönetmeliği), 1 August 2004, Article 5; Law on the Foundation and Broadcasting of Radio and
Television Channels (Radyo ve Televizyonların Kuruluş ve Yayın Hizmetleri Hakkında Kanun), 15 February
2011, Article 8(e).
40 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Basic Law on National Education, 14 June 1973, Article 4; Law on Civil Servants, 14 July 1965, Article
7; Civil Code, 22 November 2001, Article 68; Law on Political Parties, 22 April 1983, Article 12; Law on
Social Services, 24 May 1983, Article 4(d); Law on the Execution of Penalties and Security Measures, 13
December 2004, Article 2(1); Law on the Establishment of the Ombudsman Institution, 29 June 2012,
Article 30; Turkish Armed Forces Discipline Law, 31 January 2013, Article 18; Law on Prevention of Violence
and Disorder in Sports, 14 April 2011, Article 14; Regulation on Minimum Wage, 1 August 2004, Article 5;
Law on the Foundation and Broadcasting of Radio and Television Channels, 15 February 2011, Article 8(e).
41 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Civil Code, 22 November 2001, Article 68; Law on the Execution of Penalties and Security Measures,
13 December 2004, Article 2(1); Law on the Establishment of the Ombudsman Institution, 29 June 2012,
Article 18; Law on the Foundation and Broadcasting of Radio and Television Channels, 15 February 2011,
Article 8(e).
42 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Basic Law on National Education, 14 June 1973, Article 4; Law on Civil Servants, 14 July 1965, Article
7; Civil Code, 22 November 2001, Article 68; Law on Political Parties, 22 April 1983, Article 12; Law on the
Execution of Penalties and Security Measures, 13 December 2004, Article 2(1); Law on the Establishment of
the Ombudsman Institution, 29 June 2012, Article 30; Turkish Armed Forces Discipline Law, 31 January
2013, Article 18; Law on Prevention of Violence and Disorder in Sports, 14 April 2011, Article 14; Regulation
on Minimum Wage, 1 August 2004, Article 5.
43 Labour Law, 22 May 2003, Article 5(1); Law on the Human Rights and Equality Institution of Turkey, 6 April
2016, Article 3(2); Law on Persons with Disability, 1 July 2005; Basic Law on National Education, 14 June
1973, Article 4; Law on the Foundation and Broadcasting of Radio and Television Channels, 15 February
2011, Article 8(e).
44 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Law on Civil Servants, 14 July 1965, Article 7; Law on the Execution of Penalties and Security
Measures, 13 December 2004, Article 2(1); Law on the Establishment of the Ombudsman Institution, 29
June 2012, Article 30; Turkish Armed Forces Discipline Law, 31 January 2013, Article 18; Regulation on
Minimum Wage, 1 August 2004, Article 5; Law on the Foundation and Broadcasting of Radio and Television
Channels, 15 February 2011, Article 8(e).
45 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Law on Civil Servants, 14 July 1965, Article 7; Law on the Execution of Penalties and Security
Measures, 13 December 2004, Article 2(1); Law on the Establishment of the Ombudsman Institution, 29
June 2012, Article 30; Turkish Armed Forces Discipline Law, 31 January 2013, Article 18; Regulation on
Minimum Wage, 1 August 2004, Article 5; Law on the Foundation and Broadcasting of Radio and Television
Channels, 15 February 2011, Article 8(e).
46 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Basic Law on National Education, 14 June 1973, Article 4; Law on Civil Servants, 14 July 1965, Article
7; Civil Code, 22 November 2001, Article 68; Law on Political Parties, 22 April 1983, Article 12; Law on
Social Services, 24 May 1983, Article 4(d); Law on the Execution of Penalties and Security Measures, 13
December 2004, Article 2(1); Law on the Establishment of the Ombudsman Institution, 29 June 2012,
Article 18; Turkish Armed Forces Discipline Law, 31 January 2013, Article 18; Law on Prevention of Violence
and Disorder in Sports, 14 April 2011, Article 14; Regulation on Minimum Wage, 1 August 2004, Article 5;
Law on the Foundation and Broadcasting of Radio and Television Channels, 15 February 2011, Article 8(e).
47 Constitution, 7 November 1982, Article 10; Law on the Human Rights and Equality Institution of Turkey, 6
April 2016, Article 3(2); Penal Code, 26 September 2004, Article 3(2); Labour Law, 22 May 2003, Article
5(1); Law on Civil Servants, 14 July 1965, Article 7; Civil Code, 22 November 2001, Article 68; Law on

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