NATIONAL HUMAN RIGHTS INSTITUTIONS AS A HUMAN RIGHTS PROTECTION MECHANISM: THE CASES OF THE OMBUDSMAN AND HUMAN RIGHTS AND EQUALITY INSTITUTION OF TURKEY
cooperation with all parties) and the objectives were to "improve corporate effectiveness to
prevent/mitigate the violations of non-discrimination" and "engage in activities intended for
raising institutional and public awareness on the fight against discrimination" in a similar
vein.30 It is obvious that the aim and objectives in question prove to be insufficient.
No separate evaluation is made in this section for the duties of the Institution as
specified in Article 9(1)(g) and of the TIHEK Board in Article 11(1)(b) of TIHEK Law "examining, investigating and deciding on the violations of non-discrimination on an ex
officio fashion or upon application and following the consequences thereof, executing
and finalizing the process of reconciliation and deciding on administrative sanctions"
as it will be covered in the relevant section below.
Equality institutions can contribute to the fight against discrimination by engaging
in judicial procedures as well as quasi-jurisdictional functions. Since jurisdictional procedures can be more effective than quasi-jurisdictional procedures as they may result in
legally binding decisions, it is of great importance that equality institutions have some
authority in this field. In this context, first of all, equality institutions must be vested
with the authority to recourse to legal remedies on behalf and instead of victims where
they are not identifiable and the authority to recourse to legal remedies upon their consent where they are identifiable. The institution's ability to recourse to legal remedies on
its own behalf is considered an important opportunity for the development of regulations related to discrimination. Another important advantage is the ability to mobilize
legal remedies based on the consent of the persons that do not have the opportunity of
recoursing to legal remedies or are reluctant to do so for various reasons. This proves to
be very advantageous for the victims of discrimination especially in cases of working
in the same workplace or studying in the same school.31
Secondly, an equality institution must be allowed to intervene in jurisdictional
procedures upon the consent of the victim. It is possible for an equality institution to
intervene in a case in different ways and intervention is used in a way to cover all different situations. It is possible for an institution to intervene in a case alongside a party,
as well as a third party.32 If an institution intervenes in a case alongside a victim, the
prerequisite is the recourse of the victim to legal remedies beforehand. Authority of
equality institutions to intervene in this way is an obligation explicitly stated in all EU
Directives outlined above. An explicit recognition of this authority of equality institution in laws may prevent judicial bodies to act in a reluctant or hesitant way during the
exercise of this authority. In cases where an institution intervenes in proceedings as a
third party, consent of the victim is not required. This procedure allows an institution
to make available its expertise on non-discrimination to judicial bodies.33
Currently, TIHEK has neither the authority to recourse to legal remedies on behalf
and instead of victims where they are not identifiable nor the authority to recourse to
legal remedies upon their consent where they are identifiable. Besides, it is not possible
for the Institution to intervene in judicial procedures upon the consent of the victim.
Since there is no amicus curiae or third party intervention procedure in Turkish law,
it is not possible for TIHEK to intervene in the cases pending before judicial bodies.
30 TIHEK, 2019 Activity Report, p. 42.
31 Bjorn Dilou Jacobsen; Peter Reading, Influencing the Law Through Legal Proceedings, The Power and Practises of Equality Bodies,
EQUINET Report, the place of publication not known, 2010, p. 16.
32 Jacobsen; Reading, p. 19.
33 Jacobsen; Reading, p. 21.
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