Enforcing the law

Except in criminal courts, the litigants have to collect all the facts and evidence and they have to prove their case. As the procedure is quite complicated, it is extremely hard for anyone to pursue a case without the support of a lawyer.

Victims of discrimination can ask for the compensation of pecuniary damages, loss of earnings, or damages for pain and suffering, or all. Parallel proceedings are possible with regard to criminal, civil or administrative courts. Persons may simultaneously pursue a civil claim for compensation in civil or labour courts, an administrative application or a criminal complaint. In the Turkish legal system it is not possible to make a constitutional complaint to the Constitutional Court. Consequently, violations of art. 10 of the Constitution stipulating the principle of equality before the law cannot be brought before the Constitutional Court by individuals.

Although there are advantages of bringing a case to the court, there are also disadvantages. First of all, taking a case to the court is costly. Legal aid is provided under very strict criteria. Cases are not decided before 1 or 2 years. Consequently, in many cases taking a case to the court does not solve the problem.

According to the information provided by the Ministry of Justice regarding the number of cases brought before civil courts, data is not collected based on specific articles of laws. Thus, the number of the cases brought before civil courts is unknown. The situation is slightly better regarding criminal cases. Statistics are published on criminal cases based on certain criteria. According to 2008 statistics 6 cases were brought before criminal courts claiming the violation of art. 122 of the Turkish Criminal Code which prohibits discrimination. However, there is no aggregated data neither on the grounds of discrimination nor the area which discrimination had taken place.[1]

National law is silent on situation testing. There seems to be a consensus on the inadequacy of this method with respect to public authorities, as making false statements to public authorities constitutes a crime. Otherwise, as the law is silent on the issue, consideration of evidence obtained through situation testing is left to the discretion of the judge. There is neither practice nor case-law on situation testing and statistical evidence.

The national law require a shift of the burden of proof only in 2 situations, both of which are stipulated in the Labour Law. Other related legislation (including the Law of Administrative Procedure) does not provide for shifting or sharing of the burden of proof.

In Turkey, trade unions are authorized by the Trade Unions Act (Law no. 2821) to act as representatives on behalf of their members in legal proceedings. However, although individuals can be represented by their unions before judicial organs, they cannot be represented by their unions before administrative organs.

Turkish law does not fully guarantee the right of associations, organizations or other legal entities with a legitimate interest to engage in judicial or administrative procedures, on behalf of victims of discrimination. Exceptions are trade unions, consumer protection associations and associations working for the protection and preservation of the environment. Thus, specialised NGOs do not have legal standing before the courts. NGOs only provide legal assistance and due to restricted funding and professionalism they are not able to take all the cases.

Class actions are not possible at all.

All court decisions are not accessible. Consequently, it is not hard to evaluate the efficacy of  the legislation in general and the sanctions in specific. However, so far only one court decision holding that the complainant was discriminated could be reached by the author of the report. This, in itself should be considered as an indicator. Because of a combination of reasons, the number of cases where discrimination is claimed is extremely low. In many cases, the prosecutors do not identify the act as an act of discrimination and do not instigate a prosecution. As a result, the number of discrimination cases decided by courts is too minimal.