Main legislation

Although there is no specific anti-discrimination legislation yet, there are various provisions prohibiting discrimination or providing for equal treatment in the Constitution, laws and regulations.

According to art. 90 of the Turkish Constitution, international treaties which are duly ratified have the force of law. So, if the language of the treaty provision is self-executing, it will be directly applicable. As the language of the provisions of international treaties on anti-discrimination and equal treatment is self-executing, these provisions can be relied on before public authorities and courts, without need for further legislation. According to the same article of the Constitution, in case of a conflict between provisions of domestic laws and international treaties on fundamental rights and freedoms, the provisions of the treaty shall prevail. Appeal cannot be made to the Constitutional Court claiming the unconstitutionality of international treaties. Turkey is a party to a considerable number of international treaties containing provisions on anti-discrimination and equal treatment. Among these are: The European Convention on Human Rights; Revised European Social Charter; International Covenant on Civil and Political Rights; International Convention on Economic, Social and Cultural Rights; Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of Discrimination Against Women; Convention on the Rights of the Child; Convention on the Rights of Persons with Disabilities and ILO Convention No. 111 on Discrimination. Turkey has accepted right to individual complaint under many of the aforementioned treaties. However, it is still not possible to make individual complaints under the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of Persons with Disabilities. Turkey has not accepted the collective complaint procedure under the Revised European Social Charter either.

Art. 10 of the Constitution on “Equality Before the Law” is found in the first part of the Constitution, titled “General Principles”. Art. 10 of the Constitution is as follows: “All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations. …” Although this provision provides an open ended list of prohibited grounds, in the Turkish legal system it is not possible to make a constitutional complaint to the Constitutional Court.

Other provisions prohibiting discrimination are found in the Turkish Labour Law, Turkish Criminal Code, Law on Persons with Disabilities, Basic Law on National Education, Law on Civil Servants, Political Parties Law, Law on the Foundation and Broadcasting of Radio and Television Channels and a number of other laws and regulations. However, most of the provisions found in the legislation are rather vague. The legislation is inconsistent regarding the list of prohibited grounds. Age and sexual orientation are not mentioned explicitly in any provisions prohibiting discrimination.

As discrimination is a new legal concept and as it is not defined anywhere in the legislation, the case-law is almost non-existent. Only in a limited number of cases discrimination was claimed. Indeed, in most cases, attorneys or the applicants themselves base their cases on other grounds, such as the violation of the Building Law or the Law on Civil Servants.

Thus typical discrimination cases are decided on other grounds. However, as the case-law is not accessible, it is hard to claim that the author was able to have access to all discrimination cases.

NGOs have been organizing events on anti-discrimination and trying to force the Parliament to enact an anti-discrimination law. The efforts of the NGOs and the need to harmonize the Turkish legislation with the acquis communitaire in order for full membership led the Government to take action. Consequently a preliminary draft of the Law on Combating Discrimination and Establishment of an Equality Council was sent to various universities and non-governmental organizations, in order for them to express their opinions on the draft. Also, a task force on anti-discrimination was established to monitor and coordinate the steps to be taken in the fight against discrimination. The news reports state that the task force shall include representatives from the Ministry of Justice, Ministry of Interior, Ministry of Foreign Affairs, Ministry of Labour and Social Security, Human Rights Institution, General Directorate on the Status of Women, Disability Administration and Agency for Social Services and Child Protection. These representatives will be in touch with 81 deputy governors. These efforts will be coordinated by the Secretariat General for EU Affairs.