NATIONAL HUMAN RIGHTS INSTITUTIONS AS A HUMAN RIGHTS PROTECTION MECHANISM: THE CASES OF THE OMBUDSMAN AND HUMAN RIGHTS AND EQUALITY INSTITUTION OF TURKEY measure to facilitate their transportation, still it is concluded as follows: “No candidate is allowed to bring his/her car-key to the exam center, and allowing candidates with disabilities to bring their car-keys will disrupt equality against the interest of candidates without any disability, therefore it is not possible to consider this as a “positive discrimination” practice that would level the playing field.” (par 24). “ The biggest contradiction in this statement is that positive discrimination is a situation that disrupts equality and it is possible to take such special measures to eliminate inequality in transportation. Although this justification is erroneous, a correct conclusion was reached and a recommendation-decision was made to produce alternative solutions for taking measures to protect the valuable belongings of the candidates.23 Indeed, choosing this method in cases where it is possible to achieve the desired goal with equal treatment instead of differential treatment has been a more convenient and proportional method in the fight against discrimination. Special measures should also be inherently a differential treatment to eliminate inequality that cannot be eliminated by any other method. An application claiming discrimination among persons with disabilities is an important example of applications made in Turkey related to discrimination. This application claims discrimination because of a differential treatment meted out to veterans with disabilities and relatives of martyrs with disabilities and other persons with disabilities in relation to providing external prosthesis/orthosis under the Health Implementation Communiqué (SUT) and the applicable legislation. In the application filed by the Association for Monitoring Equal Rights it was claimed that there was no just reason in making a differential treatment to persons with disabilities in relation to the provision of prosthesis/orthosis that persons with orthopedic disabilities have to use for personal mobility, however, in its rejection-decision the Institution concluded that it was possible to make a differential treatment to martyrs and veterans because of their situation and in fact the constitutional obligations related to relatives of martyrs and veterans were more “comprehensive and secured” (par. 23) First of all, it should be noted that the constitutional obligation for taking special measures for relatives of martyrs and veterans or persons with disabilities, in other words the obligation to make regulations for providing equality for these persons, cannot be a justification for making regulation in favor of these persons under all conditions, and a differential treatment should have an objective justification, which will provide equality. Therefore, the criterion that should be met for making a differential treatment, notwithstanding whether it is for categories listed in the Constitution, is the existence of an objective justification. For persons with orthopedic disabilities, it is not possible to find a justification for making a distinction in the use of hands, arms or legs, while some of them have better quality of life, while some of them do not.24 In another application claiming discrimination among persons with disabilities, it is argued that granting discounts on Special Consumption Tax and Motor Vehicle Tax only to persons with a disability ratio of 90% and persons with orthopedic disabilities is a discriminatory practice. The Institution made a rejection-decision for the application arguing that: “persons with disabilities that can drive under the same conditions with persons without disabilities are not exempted from Special Consumption Tax when purchasing cars. This approach in the law is in harmony with the logic underlying positive discrimination.”25 Indeed, there is a good reason why such tax exemptions or deductions should be granted to those who have 23 Application no. 2019/8989, 5.2.2019. 24 Application no. 2015/5496, 27.7.2016. 25 Application no. 2016/102, 13.6.2016. 72