NATIONAL HUMAN RIGHTS INSTITUTIONS AS A HUMAN RIGHTS PROTECTION MECHANISM: THE CASES OF THE OMBUDSMAN AND HUMAN RIGHTS AND EQUALITY INSTITUTION OF TURKEY
concerning an act against which a criminal case was filed, resulting in a resolution of
violation.108 In another resolution, although it is not possible for the Institution to review
human rights violations upon application as per Article 9(1)(f) of TIHEK Law, TIHEK initiated an ex officio review upon application without dismissing this application. 109
It is striking that resolutions frequently refer to international law. However, there is
no overall approach for acting in line with international law considering the activities
of the Institution in general. It is observed that international legal standards are used in
a "selective" way in the Institution's resolutions.
It is observed that the members gave dissenting votes on the merits in only one of
the resolutions published by TIHEK.110 In the application filed by an applicant claiming
that he could not rent any house because he was male, a resolution was issued on direct discrimination on the ground of gender and three members gave dissenting votes
against this resolution. Two of the dissenting opinions by the Chairman of the Institution and one member stated that the application needed to be considered inadmissible
as the relevant parties did not fulfill the condition of requesting from the respective
party to correct the practice claimed to be in contravention of this Law before applying
to the Institution as specified in Article 17(2) of TIHEK Law.111 Requiring that the person
to whom the house was not rented because he was male apply again to the landlord
refusing to rent the house to him in the present case and expecting that this application
be proven within the applications to be lodged before the Institution will decrease the
already-low number of applications lodged before the Institution and is also a condition
quite difficult to be fulfilled by victims. Considering that discriminatory treatments
mostly occur in verbal form, it is uncertain how to file a request to the person committing such treatment. It is not possible to accept that "the claimed statements do not
pursue the aim of discrimination", the second justification specified in one of the dissenting opinions, just on the ground that the aim of the person committing the discriminatory treatment is not important.112 Moreover, those committing the discriminatory
treatment mainly defend themselves that they do not pursue such an aim. Validating
such arguments as valid brings about the danger of making impossible the proving of
discrimination claims, which are already hard to prove.
The third dissenting opinion expressed by the Vice Chairman of the Institution
indicates that considering women more meticulous than men is an "assessment for
reflecting the situation" and this situation cannot be considered as discrimination. In
the subsequent sections of this dissenting opinion, it is suggested that sexist stereotype
arguments will not constitute any discrimination through the statement "Otherwise, it
would be necessary to consider as discrimination the argument of 'women being more
sensitive than men' expressed on all occasions and by everyone".113
An evaluation for the resolutions of TIHEK based on the grounds of non-discrimination shows that no resolution of violations has been issued up to now with regard
to "language" and "race", two of the grounds of discrimination stipulated in Article 3(2)
of TIHEK Law. The only resolution of violation issued regarding "ethnic origin"114 is an
108 TIHEK, Resolution No. 2019/29, May 7, 2019, para. 9.
109 TIHEK, Resolution No. 2018/83, July 18, 2018, para. 4-6.
110 TIHEK, Resolution No. 2019/64, November 19, 2019.
111 TIHEK, Resolution No. 2019/64, November 19, 2019, Dissenting Votes of Süleyman Arslan and Dilek Ertürk.
112 TIHEK, Resolution No. 2019/64, November 19, 2019, Dissenting Vote of Süleyman Arslan.
113 TIHEK, Resolution No. 2019/64, November 19, 2019, Dissenting Vote of Mesut Kınalı.
114 TIHEK, Resolution No. 2019/54, September 10, 2019.
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