Main principles and definitions

Only in the case-law of the Constitutional Court, one can found certain principles. According to the Constitutional Court, “Equality Before the Law” stipulated in art. 10 of the Constitution applies to persons whose legal status is the sameand this principle aims de jure equality, not de facto equality. If the rule which is claimed to be in contradiction with 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 with the principle of equality.

In Turkish Law there is no clear and comprehensive guidance on positive action. According to art. 10(2) of the Constitution, the State has the obligation to ensure equality between men and women in practice. According to art. 61 of the Constitution, the State shall take protective measures for persons with disabilities, children and elderly. Despite lack of reference to positive action in the legislation, there are a number of positive measures which fall within the scope of the Directives. However, it is very hard to say that a holistic approach is adopted. Consequently, a concerted action is lacking.

Discrimination by association, harassment and instruction to discriminate are neither defined nor prohibited explicitly. Thus, judicial interpretation is needed. Victimisation is prohibited only in a very limited fashion. Reasonable accommodation is required for persons with disabilities. However, it is not defined. The legislation is also silent on exceptions.