The Problem of Unchanging Efficiency of Turkey's Human Rights Structures

-The Case of the Human Rights and Equality Institution of Turkey in the Light of Paris Conditions-

HOW MY INTEREST IN HUMAN RIGHTS STARTED

When I was a kid, I used to get an English magazine with thin black kids in it. I think the name of the publication issued by UN was “Refugees and Asylum Seekers”. Apart from this publication about refugees and asylum seekers and the compassion that arouses in my heart for those poor black children, my structural interest in human rights is closely related to my professional life.

DUTIES IN THE PRIME MINISTRY HUMAN RIGHTS DEPARTMENT

In 2008- I was assigned to the Prime Ministry Human Rights Presidency. I served as the Head of Refugees and Immigrants until I went to Chicago for education in 2011. At the same time, I was the representative of the Prime Ministry European Union Reform Monitoring Group (RIG) and a member of the Prime Ministry Strategic Planning. I was an OSCE election observer for democratic elections. I took part in the study of the law for the independence of the Human Rights Presidency. I prepared the Prime Minister's opinion. At the same time, we prepared Turkey's first official discrimination report together with a judge friend of mine. I was right in the middle of human rights. The only independent structure in this field was the Prime Ministry Human Rights Presidency, and at that time, the main source of the efficiency problem was seen as the fact that this institution was not independent in terms of administrative, financial and decision-making. “If the PARIS CONDITIONS were fulfilled, look how chivalrous human rights would be defended”: Independence, constitutional or legal basis, administrative and financial autonomy, pluralistic representation, guarantee of membership, recognized authority and sufficient power, accessibility, cooperation, accountability , functional activity

HUMAN RIGHTS, EQUALITY AND PROHIBITION OF DISCRIMINATION

Human rights are the fundamental rights and freedoms that all people have. These rights are structured as a concession in the form of citizen rights in the United States. This may be a reflection of the us and them distinction in western philosophy. However, these are “rights that can be enjoyed by all people, regardless of race, nationality, ethnic origin, religion, language and gender.” Everyone is equal in exercising these rights.

The principle of equality, which is based on the concept of "human dignity", also prohibits discrimination first. The principle of equality and the prohibition of discrimination regulated in Article 10 of the Constitution are among the principles that dominate the entire state. It binds the legislative, executive and judicial branches. In addition, the principle of equality is a universal principle that has found its place in many international and national texts.

According to Article 10 of our Constitution, “Everyone is equal before the law without any discrimination based on language, race, color, gender, political thought, philosophical belief, religion, sect and similar reasons”. In the European Court of Human Rights (ECHR), discrimination has been defined as “treating people in the same situation differently without an objective and reasonable reason” (Willis v. United Kingdom, para. 48, Okpisz v. Germany, para. 33).

PROTECTION METHODS RELATED TO HUMAN RIGHTS

Although there are serious problems in practice, states have had to establish various protection mechanisms at the national and international level in order to protect human rights at various levels. Because human nature is not always reliable.

Methods for the protection of human rights at the national level aim either to prevent or to control. As a result of national protection based on domestic law, depending on the nature of the right violated, civil, criminal or administrative sanctions may be imposed on the violator. The protection of human rights at the national level is divided into two as judicial and extra-judicial protection:

Judicial protection and extra-judicial protection… The first and most effective place to apply after a right is violated is judicial protection. However, while it is an advantage for the judiciary to handle the violation of human rights when it arises from private, state or interstate relations, the effectiveness of the mechanism is weakened by the fact that results can only be obtained in a long period of time. Non-judicial protection generally covers all institutions other than the judiciary that perform protection and supervision functions, but their decisions are not binding and there are efficiency problems.

The protection of human rights at the national level is the first way, but if the problems increase and expand, the national problem will grow into an international problem. The international human rights order is provided by universal organizations such as the UN and regional organizations such as the EU. International protection emphasizes human rights valid everywhere and for everyone and dictates that violations will not go unpunished. However, the fact that the EU and UN mechanisms do not set the standards equally for each country requires a separate article.

DEVELOPMENTS AND INSTITUTIONALIZATION ON HUMAN RIGHTS IN TURKEY:

When we take a look at Turkey's national protection mechanisms, we can examine the last 30-32 years in three different time periods:

PIONEER PERIOD (1990-2001):

In the last ten or eleven years of the second millennium, there are two important national prevention and protection mechanisms in the field of human rights  step taken:

Parliamentary Human Rights Investigation Commission (still under parliamentary protection)
Ministry of State for Human Rights (Creation of administrative authority)

SEEKING PERIOD (2001-2012):

The first decade of the third millennium is the Period of Search. In this period;

Human Rights Advisory Board,
Human Rights Supreme Council,
Human Rights Claims Investigation Committees,
Prime Ministry Human Rights Presidency,
Provincial and District Human Rights Boards.

INSTITUTIONALIZATION PERIOD (2012-2022):

In the last ten years, there have been very important institutionalizations in line with the Paris Conditions, let alone the effectiveness of implementation:

Constitutional Court Individual Application mechanism:

With the constitutional amendment made in 2010, as of September 23, 2012, everyone can individually apply to the Constitutional Court with the claim that any of the fundamental rights and freedoms guaranteed in our Constitution, within the scope of the European Convention on Human Rights, has been violated by the public force.

Ombudsman Institution (Ombudsman):

Established by law in 2012, the Ombudsman Institution is a Constitutional Institution included in Article 74 of our Constitution and functions on behalf of the Grand National Assembly of Turkey. Pursuant to Article 5 of Law No. 6328, “The Institution, upon a complaint about the functioning of the administration, shall; It is tasked with examining, researching and making suggestions to the administration in terms of compliance with the law and fairness, within the understanding of justice based on human rights.

Parliamentary Human Rights Investigation Commission:

With a law enacted in 1990, the Human Rights Investigation Commission of the Turkish Grand National Assembly was established. It continues to exist despite the establishment of the Ombudsman Institution. This commission, which was established in the Turkish Grand National Assembly in order to respect human rights in the world and in Turkey and to monitor the developments on this issue, to ensure the compliance of the practices with these developments and to examine the applications, should be addressed as a separate article together with the Ombudsman.

Human Rights and Equality Institution of Turkey:

This institution was established under the name of the Human Rights Institution of Turkey with the "Law of the Human Rights Institution of Turkey" dated 21 June 2012 and numbered 6332. With the decision of the Council of Ministers dated 9 December 2013, it has become a national prevention mechanism. With the "Turkish Human Rights and Equality Institution Law" dated April 20, 2016 and numbered 6701, it has also turned into an equality institution.

Human Rights and Equality Institution of Turkey, “; To protect and develop human rights based on human dignity, to guarantee the right of individuals to be treated equally, to prevent discrimination in the enjoyment of legally recognized rights and freedoms, to operate in line with these principles, to fight torture and ill-treatment effectively and to fulfill the duty of a national prevention mechanism in this regard. to” was established.

The MISSION of the Human Rights and Equality Institution of Turkey is “to protect and develop human rights, to work to ensure the right of people to be treated equally, to fight effectively against torture and ill-treatment.”

Its VISION is defined as "to be a reliable, effective and respected institution with its policies and decisions that reconcile our universal and local values ​​with its activities in the protection and strengthening of human rights".

HUMAN RIGHTS AND EQUALITY INSTITUTION OF TURKEY and PARIS CONDITIONS

Founded in 2012 under the name of the Human Rights Institution of Turkey, it is the institution established instead of the Prime Ministry Human Rights Presidency. Unfortunately, it continues to serve in its old place, in the old building on Mithat Paşa street, where I worked for three years. Of course, a new and modern building is not a guarantee of a perfect and contemporary service. However, it is clear that he could not overcome the image problem.

The institution was established to operate in line with human rights, human dignity, equality and prevention of discrimination, to fight against torture and ill-treatment effectively, and to fulfill its duty as a national prevention mechanism in this regard.

When you look at the institution,

National Human Rights Institution,
National Prevention mechanism,
Equality and Anti-Discrimination Authority,

It is understood that he is fulfilling his duties and there is no authority problem. Human rights, which are universal in nature, require protection by both national and international independent mechanisms. However, the application may not always be in this direction.

The name of the Institution, which is a special budget administration, was changed on 20 April 2016 and took its current form. The PARIS CONDITIONS included in the Prime Ministry's opinion that I have prepared have been fulfilled almost completely: Independence is complete, at least in form. A constitutional or legal basis is provided. There is no problem in administrative and financial autonomy. Pluralist representation exists in form. Since the membership guarantee is given, no one can be dismissed before the expiry of the term. In fact, there is a recognized authority and sufficient power. Although there is no serious awareness in the public, accessibility cannot be said to be absent. Collaboration and 

There may be criticisms about sceptibility, but this is not the main problem: The institution has not been able to provide the functional effectiveness clearly stated in the Paris conditions.

Unfortunately, the proposal in the Prime Ministry's view that the human rights mechanisms should not be weakened by becoming too fragmented was unfortunately not accepted.

THE UNCHANGEABLE EFFICIENCY PROBLEM OF TURKEY'S HUMAN RIGHTS INSTITUTION

I saw news about the institution in a newspaper (BIRGÜN 14.08.2021): “The Human Rights and Equality Institution of Turkey, whose annual expenditure exceeded 17 million lira in total, spent 2020 almost empty. The institution, which spent 7 million liras as personnel expenses, made only 12 visits last year.” “The number of applications, petitions and notices made to TİHEK last year was 1,363. TİHEK evaluated 276 of the applications received within the scope of the fight against discrimination, 679 of them within the scope of the national prevention mechanism regarding torture and ill-treatment, and 408 at the preliminary examination stage. TİHEK, which found 203 of the individual applications for violation of rights to be unexamined, gave a violation decision in only 12 of the 43 files it examined within the scope of the prohibition of discrimination.

“Within the scope of its national preventive mechanism, the institution examined 175 applications made between January 1 and December 31, 2020, as well as 504 petitions and notices, and 29 applications transferred from 2019. A violation verdict was given for only one of the 708 requests received by TİHEK.

When we look at the shares of 2021, we do not see a different picture: It is understood that 16 Reports were prepared in 2021 within the scope of the national prevention mechanism duty on the TİHEK website, and the reports numbered 2021/4, 2021/5 and 2021/15, if they were prepared, were not shared with the public. In 2020, 15 reports were announced. 5 reports, if prepared, were not made public.

Looking at the Board resolutions for 2021, it is seen that 115 Board Decisions shared on the internet were taken, most of them were inadmissibility decisions, there were not a few violations, and there was only one compromise decision. The number of infringement decisions taken relates to only five cases.

One of them is discrimination on the basis of marital status regarding a disabled person's right to participate in cultural life, the other is discrimination based on business life, the third and fourth are discrimination on the basis of marital status, and the fifth is discrimination based on belief regarding the prevention of entering the pool with a veiled swimsuit in a complex.

EVALUATION

Human rights institutions in Turkey have developed in the last thirty years. These developments are more related to external push like the EU process rather than internal attraction.

Undoubtedly, these institutions were strengthened structurally after the acceptance of the Paris Conditions. However, this change either never showed itself in the field of activity or could not provide a parallel increase compared to the rate at which it became structurally stronger.

National mechanisms that will protect human dignity in Turkey need to fulfill their legal responsibilities with implementation. It is undeniable that these institutions, which exercise judicial powers and are the country's immune system, are very strong in form together with the Paris Conditions. For this reason, it is inevitable for a healthy country and a healthy society to work impartially and independently not only from power groups and individuals, but also from governments.

Undoubtedly, in Turkey of 84 million people, there are human rights violations and allegations of discrimination far beyond the issues such as searching for a rental house or swimming in the pool on the site.

As a result, the common reason for the ineffectiveness of National Human Rights institutions is that they provide “weak protection with a fragmented structure”. In this context, the Human Rights and Equality Institution of Turkey has a constant efficiency problem. However, the institution did not have a weak formal structure. Employees and elected officials must also have a strong character.

As Spanish Ombudsman Defensor Del Peublo Enrique Mugica Herzog said (2009) during our visit to Spain with the Council of Europe, a determination that "if I detect human rights violations and discrimination, I will dismiss two ministers with a report" is required.

Loyalty should not be to those who appoint us to institutions, but to the Great Turkish Nation and the laws that fund us with their taxes.