NATIONAL HUMAN RIGHTS INSTITUTIONS AS A HUMAN RIGHTS PROTECTION MECHANISM: THE CASES OF THE OMBUDSMAN AND HUMAN RIGHTS AND EQUALITY INSTITUTION OF TURKEY
against discrimination is a legal obligation, especially for EU member states. With that
being said, activities regarding equality institutions have gained pace across the world
for preventing victim-oriented and discriminatory treatment or quickly and effectively
eliminating the consequences of discriminatory treatment. It is possible for well-functioning equality institutions that are compliant with applicable standards to eliminate
instances of discriminatory treatment in a shorter period of time and relieve the judicial bodies and international mechanisms overwhelmed with heavy workload. As seen
below, it is observed that TIHEK does not fulfill these functions.
During the enactment process of TIHEK Law, opinions were not sought from any
civil society organization (CSO) working in the fight against discrimination and the
draft version was enacted without any amendment. CSOs made rightful criticisms
against TIHEK Law such as the absence of sexual orientation among the bases of discrimination, the failure to regulate the bases of discrimination in an open-ended fashion, the failure to include the principle of pluralism in the selection of members for
the Board of Human Rights and Equality of Turkey (hereinafter referred to as "TIHEK
Board" or "Board") formed under the Institution, the failure to prescribe qualifications
for Board membership in parallel with the Institution's fields of activity, the relatively
problematic nature of the Institution's independence and the publication of Board resolutions only if "deemed necessary". As seen in the evaluation below, all criticisms made
by the civil society proved to be real considering the first four years of implementation
by the Institution.
It is possible to interpret that the failure to apply for accreditation before the
Sub-Committee on Accreditation6 of the Global Alliance of National Human Rights Institutions (GANHRI) although more than four years have passed over the establishment
of the Institution7 is an implicit acceptance by the Institution that the existing legal
framework and the Institution's activities do not comply with international standards.
Considering the current standards implemented by GANHRI, TIHEK can be accredited
by "B" status (partially compliant with the Paris Principles) as "C" status (non-compliant with the Paris Principles) is no longer granted. This should be seen as a result of
both the legislation and the practices of the Institution.
The report consists of three sections. Section one aims to set forth the international
standards that will form the basis for the evaluation of TIHEK and create a set of indicators based on them. Section two evaluates the compliance of TIHEK with international
standards over these indicators. This section also evaluates the resolutions published
by TIHEK until July 31, 2020 with regard to its duty of fight against discrimination. It
should be noted that both the number of applications lodged before the Institution and
the number of resolution issued and published by the Institution are quite low. Therefore, it has only been possible to perform a limited evaluation in this area. The study
finally covers the determinations made in previous sections.
Sections in the "Principles Relating to the Status of National Institutions"8, the "Paris
Principles" in brief, adopted by the UN in 1993 are taken into account for the evaluation
of TIHEK within the report. The Paris Principles are not a legally binding document, but
it is a guide for equality institutions. The Paris Principles are composed of sections titled
6 For more information, see https://nhri.ohchr.org/EN/AboutUs/GANHRIAccreditation/Pages/default.aspx (accessed: July 31, 2020)
7 See https://www.tihek.gov.tr/bm-ve-ulusal-insan-haklari-kurumlari/ (accessed: July 31, 2020)
8 Fact Sheet No.19, National Institutions for the Promotion and Protection of Human Rights, United Nations, Geneva, p. 3, http://
www.ohchr.org/Documents/Publications/FactSheet19en.pdf (accessed: July 31, 2020)
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