National Report: The Legal Assessment of Disability Employment Rights in Turkey

This project is co-funded by the European Union and the Republic of Turkey

Authors: Assoc. Prof. N. Munci Cakmak Dr. Tolga $irin RA Canan Onal Advt. Figen Erbek 2015 T0•K1YE CUMHURIYETJ A\'RUPABiRLlCJBAKANLJCI

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National Report: The Legal Assessment of Disability Employment Rights in Turkey

Authors: Assoc. Prof. N. Münci Çakmak Dr. Tolga Şirin RA Canan Ünal Advt. Figen Erbek

2015

The Report Series of I Can Work! Project*

National Report: The Legal Assessment of Disability Employment Rights in Turkey

Authors: Assoc. Prof. N. Münci Çakmak Dr. Tolga Şirin RA Canan Ünal Advt. Figen Erbek Editors: Assoc. Prof. N. Münci Çakmak RA Canan Ünal Advt. Pınar Şanel * I Can Work! Project was funded by Civil Society Dialogue III – Political Criteria grant scheme which was implemented by European Union and The Ministry of European Union of Turkish Republic. The project was coordinated by The Spinal Cord Paralytics Association of Turkey with partnership of Praxis Europe (England), ROSCOS (Romania), Saglik-Sen (Trade Union of Health Sector Workers) İstanbul Branch No:1 (Turkey) between 15th October 2014 and 14th October 2015. The aim of the project is to analyse the current situation of the policies on the employment for persons with disabilities and to increase the capacities of NGOs to contribute to the improvement of political reforms on the employment rights of disabled citizens.

“This publication is produced with financial support of the EU and Republic of Turkey. The Spinal Cord Paralytics Association of Turkey is responsible from the content of this document and can in no way be interpreted as the opinion of the EU and/or Republic of Turkey.”

October 2015 © 2015, The Spinal Cord Paralytics Association of Turkey Address: Ataköy 7-8. Kısım, Mimar Sinan Villaları Karşısı, Rekreasyon Alanı, 34750 Bakırköy / İstanbul - Turkey Telephone: +90 212 661 1 661 www.tofd.org.tr contact@tofd.org.tr Design: Fulya Hocaoğlu Paging Up: Bahadır Çınar

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“I CAN WORK!” PROJECT

As The Spinal Cord Paralytics Association of Turkey, we implemented the “I Can Work!”

Project which received grant under the Civil Society Dialogue Grant Scheme Program in partnership with Saglik-Sen (Trade Union of Health Sector Workers) İstanbul Branch No:1 (Turkey), Romanian Spinal Cord Society (ROSCOS) and Praxis Europe (UK) starting in October 2014 for one year.

We intended to investigate through our project the work done in Turkey and other European Union member countries at the policy level in terms of the employment of the disabled.

Therefore, we organized study visits to Romania and the UK. During these study visits, we not only found the chance to learn the policies of these countries on the subject, but also visited the institutions carrying out work in different fields and observed the reflections of these policies on everyday life.

At the end of the project, we learned the system philosophies of the EU countries and we developed policy proposals in order to contribute to the current policy of Turkey during workshops in our seminar where we evaluated the policies regarding the employment of the disabled and where the public and the civil society came together.

One of the most important pillars of this project was the academic reports prepared during the project. It makes us very excited that these reports are going to cover a serious deficiency in the field. I hope our national reports that examine the Turkish, the United Kingdom and Romanian systems in-depth and also our comparative report comparing Turkey with the European Union countries will shed light on everybody who wants to work on these issues.

We sincerely hope that our dialogue that we developed in this field with our partners will continue in our future work as well.

Burak Keskin - Project Coordinator www.icanworkproject.com

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CIVIL SOCIETY DIALOGUE FULL SUPPORT FROM THE EUROPEAN UNION AND TURKEY TO INTERNATIONAL DIALOGUE It is an indispensable part of the membership process for the societies in Turkey and European Union member countries to know each other better, to exchange information and come together in terms of their social values, judgments and lives. At this point, both the European Union and Turkey support the projects constituting the grounds for such convergence within different programs.

This Civil Society Dialogue Program carried out by the Ministry of European Union since 2008 continuing its third period is one of these initiatives. The non-governmental organizations from Europe and Turkey develop joint projects on the determined subjects for each period under the program. Many studies have been carried out in Europe and Turkey under these projects which constitute an important place in starting a strong dialogue between societies.

In the new term starting in October 2014, 55 projects developed by the non-governmental organizations and media institutions active in a European Union member countries or Turkey are being supported with grants.

39 projects out of the 55 projects are the ones designed under the main subjects of fight against discrimination, human rights, democracy and the rule of law which are on the agenda of Turkey and European Union. There are 16 projects implemented on media which is another pillar of the program. These projects aim at informing the public on the European Union - Turkish relations, enlightening about the steps taken in the membership process and the obtained results and strengthening the mutual understanding between the European Union and Turkish society.

www.civilsocietydialogue.org

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PREFACE

The Spinal Cord Paralytics Association of Turkey (TOFD) has played an important role in increasing the quality of its services and developing of the visions of its team, and employees and executives of different non-governmental organizations, institutions and enterprises; and has contributed diligently to the creation of national and international projects performed in cooperation with the central government, local governments, universities, and NGOs (Non-governmental Organizations); and has successfully completed all of these . projects.

Significant studies were carried out on the applicability of many of the reported examples to our country in the study visits held abroad within the scope of the projects. We also guided the transfer of some information on the improvement of the knowledge, conduct and quality of life of people with disabilities which are developed, yet still absent in our project partner countries.

It is a fact that the right to work is one of the key elements for each individual. In the research we performed 15-20 years ago, the employment rate was observed to be very low even for the disabled individuals working in the public sector. We identified how important it is for the disabled to join production life based on the work analysis, capacity, conditions, and problems of the disabled in the work life; and paved the way for the disabled to take up a respected position in the society by pioneering the removal of the barriers in front of them.

All the projects have shown how important the public-civil society dialogue is.

In our "I Can Work!" Project, the previous experiences and researches of our foreign partners ROSCOS and Praxis Europe have led us to cooperation with them. Joining the Sağlık-Sen (Health Union) Istanbul Branch No 1 which carries out the related studies on the disabled employment to the project as a partner, we have completed our joint study in the international arena with success and maximum benefits.

Our country and comparative reports generated for the project have been prepared by experienced professionals/ academics in the field determined by us. I believe that all institutions and organizations which are working on the issue from different perspectives such as project partner institutions and organizations, related ministries, bar associations, universities, local governments, trade unions, business and civil society can benefit from the project result reports in the most efficient manner.

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I offer my gratitude to the Ministry of the EU supporting us in every phase of the project; and I wish the dialogue we have established between the Public and NGOs continues after this point.

Ramazan BAĹž - The President of TOFD

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CONTENTS INTRODUCTION ................................................................................................... 9 CHAPTER ONE THE PHENOMENON OF DISABILITY AND DISABILITY IN WORK LIFE I. THE DEFINITION OF THE DISABLED ............................................................ 11 II. THE NEGATIVE FACTORS AFFECTING THE WORK LIFE OF THE DISABLED ........................................................................................................... 12 1. Legal Reasons ..................................................................................................................... 12 2. Biological and Social Reasons ........................................................................................... 12 a. Selfishness ....................................................................................................... 13 b. Ignorance ......................................................................................................... 14 c. The Inadequacy of Some Administrators and their Lack of Necessary Skills ........... 14 d. Some of the long bureaucratic procedures ........................................................... 15 e. Perception Disorder........................................................................................... 16

CHAPTER TWO THE CONSTITUTIONAL OVERVIEW OF THE RIGHT TO WORK OF THE DISABLED IN TURKEY I. IN TERMS OF THE FUNDAMENTAL RIGHTS AND FREEDOMS IN THE CONSTITUTION .................................................................................................................. 19 1. The General Fundamental Rights and Freedoms Regulations Regarding the Disability Rights ................................................................................................................. 20 2. The Special Fundamental Rights and Freedoms Regulations Regarding Disability Rights ................................................................................................................. 22 II. IN TERMS OF THE INTERNATIONAL HUMAN RIGHTS LAW .......................... 34

CHAPTER THREE EMPLOYMENT OF THE DISABLED UNDER THE BUSINESS LAW AND THE ADMINISTRATIVE LAW

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I. THE DISTINCTION OF WORKER AND CIVIL SERVANT IN THE TURKISH LAW ........................................................................................................................................ 41 II. EMPLOYING THE DISABLED UNDER THE LABOR LAW .................................. 44 1. Preparing the disabled for employment and mediation .......................................... 44 2. Employing Disabled Workers ............................................................................ 46 3. Disability based discrimination .......................................................................... 56 III.EMPLOYMENT OF THE DISABLED UNDER THE ADMINISTRATIVE LAW. 62 1. The 1982 Constitution and the Rights of the Disabled for Public Employment ........ 62 2. The Civil Servants Law No. 657 and the Entrance of the Disabled to Civil Service .. 64 3. Disabled Public Personnel Selection Examination (EKPSS) for the Disabled and the Recruitment of the Disabled to the Office ............................................................... 65 4. Various provisions which facilitate the disabled regarding civil service .................. 67

CHAPTER FOUR THE VIOLATION OF THE RIGHT TO WORK OF THE DISABLED I.

THE PROBLEM OF EDUCATION............................................................................. 71 1. Enver Şahin - Fırat University Case .................................................................... 73 2. Koray Arslan - Istanbul Technical University Case .............................................. 74

II. PHYSICAL ACCESS AND TRANSPORTATION PROBLEMS OF THE DISABLED ............................................................................................................................. 75 1. The Spinal Cord Paralytics Association of Turkey – Istanbul Metropolitan Municipality case (Sirkeci Kemeraltı overpass case) ................................................ 76 2. The Spinal Cord Paralytics Association of Turkey - Istanbul Metropolitan Municipality Light Metro Case .............................................................................. 78 III. PROBLEMS ENCOUNTERED BY DISABLED EMPLOYEES IN THEIR WORKPLACES…………………………………………………………………………….

CONCLUSION ...................................................................................................................... 83 REFERENCES....................................................................................................................... 85 JUDGMENTS ........................................................................................................................ 88 EDITORS................................................................................................................................ 89 THE BACKGROUND OF THE AUTHORS AND EDITORS ......................................... 89

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INTRODUCTION Imagine a species which covers the entrances of buildings with slippery stones because it looks good and then lays carpets to avoid falling. The species doing this has not yet fully grasped the value of social living conditions, the very system which it has created. At this point, it is not right to put the whole blame on human beings. Mankind has not yet fully developed from the evolutionary point of view, and therefore, cannot fully grasp certain phenomena. There are thus some defects in his assessments and efforts regarding these phenomena. As we have seen above, giving up the functionality of roads for the sake of looking good cannot be explained rationally. Putting aesthetics above function proves that progress is not yet sufficient.

Thus, our explanations concern human beings who are part of a species which has not yet fully completed the evolutionary process. Since the subject of this report concerns the rights of the disabled and the practices regarding the work life of the disabled, our assessments will focus on this angle.

It is a fact that the disabled experience various problems in work life and, if we are to include those who have not yet commenced working, various problems finding employment at all.

Foremost among these problems is social perception. The disabled are perceived as people who are in need of care or assistance. This situation creates a 'legitimate' ground for the exclusion of disabled people from work life. Yet although international law, and as a result domestic law, has abandoned the view that disability is a medical condition and instead accepted it as a social one, this has not changed public perception. For instance, in some documents outlining the disability of disabled people, the disabled person is referred to as a patient. Although less common, there are still instances where the name and surname section is specified as 'the name and surname of the patient'. Modifying such practice mistakes will certainly greatly contribute in changing the general perspective over time.

Some of the problems encountered by disabled people in work life are the same or similar to those experienced by people without disabilities. For instance, although the failure to find a job because of the discrimination against the disabled is different in nature to the failure to find a job due to discrimination of gender since the person is a female, they are in fact the

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same in terms of their end results. Other problems are the problems experienced by the disabled in their work life due to their disabilities. For instance, accessibility problems in the workplace are included in this area.

As a result of the significant changes implemented over the last few years in disability law in Turkey, it is possible to claim that the legislation is at the same level as the modern world.

However, there are some problems evident which result from the practice and/or malpractice and/or incomplete practice of the provisions of the law.

Although most of the problems experienced due to disability are universal, this report aims to examine the legal status of disabled workers in Turkey. In this context, first the phenomenon of disability and disability in work life will be explained 1, then the constitutional overview of the working rights of the disabled people will be put forward 2, and then a detailed explanation will be given regarding the employment of the disabled as civil servants 3, and finally, problems in application will be evaluated through court judgments 4.

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This chapter was authored by Assoc. Prof. Dr. Münci Çakmak and its responsibilty belongs to the author.

This chapter was authored by Dr. Tolga Şirin and its responsibilty belongs to the author.

3 In this chapter, the titles “Distinction of Workers and Civil Servants in the Turkish Law”, “Employment of the Disabled under the Labor Law” and “Employment of the Disabled under the Administrative Law” were respectively authored by Assoc. Prof. Dr. Münci Çakmak and Res. Assistant Canan Ünal; Res. Assistant Canan Ünal; and Assoc. Prof. Dr. Münci Çakmak, the responsibilty of each chapter belongs to the authors.

4 This chapter was authored by Att. Figen Erbek and its responsibilty belongs to the author.

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CHAPTER ONE THE PHENOMENON OF DISABILITY AND DISABILITY IN WORK LIFE (Assoc. Prof. N. Münci Çakmak)

I. THE DEFINITION OF THE DISABLED Although it is hard to define disability, we think that it is necessary to make a brief and general definition instead of defining it in detail in order to establish an awareness which will eliminate the disability.

It is possible to define disability in various ways. However, it should be noted that "whichever definition is adopted, when we look at it from a psychological perspective, we should know that disability cannot be fully defined or it is not possible to say what disability is." (Vicky, 1993: 3). In addition, disability does not have a quality that can be expected to appear in reliable statistics due to its own nature. (Tyler, 1993: 213)

It is not sufficient to explain disability biologically, as disability is constructed in a social structure. It should be noted that "even diseases are not just a biological process, but possess a social and cultural dimension." (Cirhinlioğlu: 2001, 15). Therefore, instead of a biological, medical and physical definition, a social definition will result in more efficient outcomes.

As a result of the modification made with the Law no. 6518 dated February 6, 2014 in the provision 3/c of the Law of the Disabled 5 no. 5378, the disabled is defined as "the individual affected by the attitudes and environmental conditions which limit his complete and active participation in the society along with the other individuals under fair conditions due to his losses at various levels in his physical, cognitive, spiritual and sensual abilities." As stated in the general grounds of the law, the disabled have gained recognition under the Convention and contemporary human rights perspective to which Turkey is party. The definition is extremely effective and useful. Above all, this definition underlines an extremely significant issue by citing the cause of the disability as the attitude of the society and the environmental conditions. Thus, disability is not evaluated through medical models, but a social model. The

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RG 19.02.2014, 28918.

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mentioned amendment is also a requirement of the obligations arising from the international law (Ăœnal, 2015) and is an important step in changing social perception.

In conclusion, if we were to provide a definition, the disabled is the person who is treated differently in society due to a physical or mental difference or a chronic illness (Çakmak, 2007: 19). If the person had not had the physical or mental difference or illness, and would receive a different treatment, that difference in treatment is the disability.

II. THE NEGATIVE FACTORS AFFECTING THE WORK LIFE OF THE DISABLED

1. Legal Reasons The legal reasons that complicate the work life of the disabled manifest themselves as not existence but as an absence. There is certainly no legal provision intended to directly complicate the work life of the disabled in today's modern world. In some cases, rules prescribed for other purposes might unintentionally complicate the life of the disabled. Such rules are often either modified or eliminated shortly. The legal obstacles that make the work life of the disabled difficult mostly manifest themselves as the absence of legal rules that are needed the most.

2. Biological and Social Reasons It is not sufficient to have laws alone which facilitate the work life of the disabled. The incompetence and ignorance of the people who implement these rules may render these laws deficient/useless. However, the main reason is the mistakes of the practitioners. Today, although the laws in Turkey bring about contemporary and sophisticated rules that govern the work life of the disabled, some disruptions experienced in the implementation process create problems for disabled employees.

The process of transferring laws from paper to social life is one that takes place through the will of the person applying the laws. The existing rules are passed through the mind and are applied on the tangible case as a result of the harmonization between the real life and the rule.

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It is at this stage where problems arise. These problems often complicate the life of the disabled unintentionally. We can list these reasons as follows: a. Selfishness Human beings are selfish and egotistical creatures. They live in order to satisfy only their own interests and therefore think only about themselves. This is the result of the evolutionary process. It should change over time. However, the evolution of the human being is different from animals and plants and is not always shaped by the outside world. Human beings can exceed their own standards thanks to their ability to use their mind. People need not wait for completion of their evolution. Their development is not dependent on the conditions of the outside world. The feeling of selfishness excludes everything that is contrary to the wishes and interests of the person. The disabled also receive their share from this activity of exclusion. In fact, even the disabled may ignore the disabled.

The feeling of selfishness is reflected to the outside world in various ways. For instance, there are people who park in disabled parking spots or on sidewalks even if for a short period.

These people do not aim to directly persecute the disabled. Their behavior is not carried out deliberately. Their own selfish attitudes tell them to park at such places and they do so. They consider the thoughtless explanation of their mind as legitimate and continue such behavior.

Although their goal is not to persecute the disabled directly, their behavior indirectly grinds the disabled. Some of them are aware of this, while some of them are not at all.

Solution: it is not possible to change such people, because this is the last individual stage as a result of their development process. The important thing is not to raise such generations at all, which can be overcome with education starting from an early age. If we can instill the idea that the rules of living in a society should take place before selfish feelings starting from elementary school, in the future, individuals who are less selfish will be raised. The only thing to do for individuals who are impossible to change is severe punishment. It will be beneficial if these punishments are self-educating, teaching them not to be selfish. It will be appropriate to punish such actions, such as parking in the disabled parking spot, obstructing the sidewalk and failing to build a bathroom for the disabled in buildings. There are already such punishments in all legal systems. Increasing the severity of the punishment might increase the rate of deterrence.

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b. Ignorance Unfortunately, some authorities are not even aware of the regulations regarding the disabled.

Meeting such needs is often directly in response to requests. Information has two aspects. The first is the new technological developments and new practices for the disabled; and the second is the newly established laws. It is important to follow and implement both of these by the administrators for the rights of the disabled. Both of the sensitivities cannot be simultaneously encountered in some of the administrators in practice. The cause of the problem is the inadequacy of these administrators. However, an actively working administrator has to be ready to collect information and implement these. Although there are numerous administrators who consider collecting the available information and protect the rights of the disabled as a part of their duty, there are also administrators who do not possess these qualities. Disabled people working in places where such administrators exist experience some problems.

The requirement of being aware of the laws is a very important issue. Available or newly established rules regarding the rights of the disabled should be considered primarily by the administrators. However, instead of applying newly established rules, some administrators prefer to wait for orders from their superiors, and as such their knowledge of new laws and rules never develop. c. The Inadequacy of Some Administrators and their Lack of Necessary Skills The interpretation of the laws by inadequate people might complicate the work life of the disabled. Not only for the rights of the disabled, but also for the healthy execution of all state activities, authorities should possess a certain level of culture, work ethics, professional knowledge and leadership skills. The interpretation of the laws by inadequate people might complicate the work life of the disabled. The inadequacy of administrators complicates the implementation of the laws or might cause the failure to implement them.

This manifests itself in two ways:

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The first is the inadequacy of the in-service training received by some authorities at managerial administrative positions or the failure to receive in-service training concerning particular subjects.

The second is the fact that some people take up an administrative position although they do not necessarily deserve it. Authority exercised in positions obtained without sufficient knowledge will certainly result in problems. The uninformed administrator also disrupts the order of other employees who are hierarchically dependant on him. The disabled, on the other hand, cannot acquire the rights granted to them legally due to these administrators or are deprived of some of them. There is also a high possibility that administrators of this kind display certain feelings and behaviors such as thoughtlessness and inferiority complex.

Having administrators with thoughtless attitudes and inferiority complexes might result in the disruption of the improvement activities for the disabled. The administrator with a complex might believe that the arrangements for the disabled are against the equality of the other employees and his own position.

Such problems are actually not the problems of the state, but of the people, however, since such people are at some administrative positions of the state, the problem of the disabled is no longer personal and is perceived as the attitude of the state. However, the state has created all the legal regulations and systems required in our country. Problems will arise due to unqualified practitioners.

Sometimes the administrative authority is unqualified and cannot understand and assess the rules and cannot apply them to events. It cannot predict the future and cannot ever evaluate the possibilities. Such employees must not be promoted to administrative positions. For instance, if there are no disabled persons in a public institution, it is normal to not have any regulation facilitating disability access. The inadequacy of this authority is clearly seen when it is suggested that someday somebody will certainly become disabled or the disabled guests who will temporarily visit the building will need such arrangements.

d. Some of the long bureaucratic procedures In some cases, although the administrators want to implement the practices to make improvements for the disabled, they are hindered by bureaucratic obstacles. For instance, in

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most of the state institutions, there are no units concerned with the construction work, the units are sent by the superior units. It is mostly legally not possible for the subauthorities to buy goods or services from outside by using their own resources. Therefore, the activities for the disabled might be disrupted. Lack of funding, personnel and equipment cannot be eliminated by the subauthorities; therefore, they cannot make any improvements for the disabled until the superior authority sends the resources.

Another problem regarding bureaucracy is the extremism experienced in the requests to document the legal procedures and situations. Such situations which exhaust not only the disabled, but also others should be abolished. In some practices, requesting the documents of the disabled showing they are disabled and the process of getting approval from various authorities for the documents should no longer be a necessity to facilitate the life of the disabled people considerably.

e. Perception Disorder Images of the disabled in society are generally poor; they are perceived as people who in need of help. This also applies to the majority of disabled employees. It is very difficult to defeat this point of view and it is impossible to provide these with the underdeveloped human brain (not yet fully evolved) today. Basically, there is no difference between an employee who requests a computer to type documents at an administrative institution and an employee who requests an elevator in order to comfortably move in the building. Both of them need a material standard in the outer world. However, some people are far from understanding this.

Focusing on the practice, not the theory is one of the main causes of this problem.

Another reflection of the perception disorder is the belief regarding that the disabled cannot work or cannot do certain works or that the quality of work they produce will be of a low level. This belief is correct in some cases, not every disabled can do every kind of work.

However, it is not right to generalize this approach and extrapolate it to all other groups of disability. There are many areas of work for the disabled. Particularly in the public sector, the work is very diverse. It is easy for the disabled who work at public institutions at the position of a civil servant to do works appropriate for their disability. What is important is to establish a relationship between the quality of the work and the disabled. The disabled should be given

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a chance to do the work that they believe they can do. They should even be promoted to administrative positions so that precautions can be easily taken as they know the problems of the disabled more intimately.

The difficulties faced by a disabled employee during an average day might be respectively modeled as follows: (it is considered mixed for all disability groups) 1. Arrival at the workplace - no car parking place for those using a vehicle - the obstacles in the area between the building and the car - the problems experienced in public transport 2. Access inside the building - access to an elevator - slippery floors polished to shine - lack of the written direction signs - the obstacles inside the building (door sills, stairs without ramps, mezzanine with small steps and mezzanine stairs) 3. Elevator and stairs problems - the inability to fit a wheelchair into the elevator - the failure to read the floor buttons for the visually impaired - the touch elevator buttons (touch buttons are not useful innovations since the visually impaired people cannot find where the button is. People with prosthetic hands cannot activate the touch buttons since the plastic hand cover is not conductive) - an out of service elevator where there is only a single elevator in the building 4. Bathroom problems - high sinks - narrow toilets - the height of drying machines and paper towel dispensers - the distance of the taps, turning taps - the distance of soap - the different positioning of the toilet paper at different locations 5. Obstacles regarding furniture

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- impractical desks - impractical tables - high longcoats

6. The most important obstacle The attitude of certain unqualified administrators who are expected to help when they are consulted to eliminate these problems.

Some disabled employees face such problems every day and will continue to do so for the entirety of their working life. In fact, such problems are not only the problem of the disabled.

Pregnant women, the elderly, and those who are temporarily treated (such as those having a broken leg or arm) have difficulty in accessibility. Small precautions and small improvements to be taken will eliminate the available or possible problems or ensure their complete elimination.

Legal regulations on disability do not eliminate problems of accessibility and perception of the disabled. Disability is a social situation that requires a long understanding process. Not only a certain segment of the society, but also everybody should have awareness about this issue. Each new generation should be given training and education so that the next generations will be aware.

While some laws govern the existing system, the others come into the scene when the order is disrupted and put sanctions on the illegality emerging. The fact that these sanctions are deterrent serves the solution of the problems encountered by the disabled in their work life.

The following information will be provided in this context.

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CHAPTER TWO THE CONSTITUTIONAL OVERVIEW OF THE RIGHT TO WORK OF THE DISABLED IN TURKEY (Dr. Tolga Ĺžirin) When we talk about the right to work of the disabled people, we talk about a human right. In fact, 'the disability rights' and 'the right to work' describe two different categories of human rights. The first of these explain the rights of the members of a disadvantageous vulnerable group, while the second one describes a social human right that applies to everyone without a specific limitation. When we say the right to work for the disabled, we point out to the intersection of the two rights.

Unlike the United Kingdom, Turkey, just as in Romania, has a written and codified Constitution which is solid and subject to judicial procedure. The mentioned intersection area has a number of provisions in the Turkish Constitution. These can be divided into two in terms of (i) the Fundamental Rights and Freedoms in the Constitution and (ii) International Human Rights Law.

I. IN TERMS OF THE FUNDAMENTAL RIGHTS AND FREEDOMS IN THE CONSTITUTION Turkey is a state with nearly 140 years of constitutional heritage. The current constitution which came into force in 1982 was the fifth ring of the constitutional chain which started with the first 1876 Constitution in the Ottoman Empire 6. Although the Constitution is the product of a military coup made in 1980, the mentioned text has undergone changes 18 times with the influence of the judgment of the European Human Rights Court (EHRC) and the nomination of Turkey as the candidate to the European Union (EU). 70 provisions in total were amended, and 21 provisions were abolished and 17 provisions were added. Therefore, in the articles regarding the fundamental rights and freedoms, the level became close to the level of the modern European states. However, controversies have been carried out for a long time for a new constitution and new proposals are being prepared within the scope of this discussion.

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There were other constitutional documents before this. 1876 Kanun-i Esasi was the first constitution in that form.

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If we are to make an assessment in terms of the disability rights, there are no special articles as 'disability rights' in the 1982 Constitution. However, both some general articles regarding the fundamental rights and freedoms and the special provisions which openly talk about the disabled are relevant to the subject. The special provisions are not regulated as a single article like in some other constitutions (eg. the Romanian Constitution Art. 50). The specific provisions on this issue are scattered into different articles.

1. The General Fundamental Rights and Freedoms Regulations Regarding the Disability Rights The 1982 Constitution contains quite a number of provisions in terms of the fundamental rights and freedoms system. The first provision in the constitution in this regard is located in the Preamble:

"That every Turkish citizen has an innate right and power, to lead an honourable life and to improve his/her material and spiritual well-being under the aegis of national culture, civilization, and the rule of law, through the exercise of the fundamental rights and freedoms set forth in this Constitution, in conformity with the requirements of equality and social justice; (...) that they have the right to demand a peaceful life based on absolute respect for one another’s rights and freedoms, mutual love and fellowship (...) With these IDEAS, BELIEFS, and RESOLUTIONS to be interpreted and implemented accordingly, thus commanding respect for, and absolute loyalty to, its letter and spirit; Has been entrusted by the TURKISH NATION to the democracyloving Turkish sons’ and daughters’ love for the motherland and nation 7."

Following the Preamble, the second article expresses that the State has the following qualities 8 which have a certain meaning in terms of the right to work for the disabled:

"The Republic of Turkey is a democratic, secular and social state (...) respecting human rights, (...) and based on the fundamental tenets set forth in the preamble."

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The emphasis is located in the original text.

These qualities are in parallek with the Article 1 of the Romanian Constitution. On the other hand, there is a paralellism in terms of the invariable articles (impartiality, Republic, official language). However, the Article 4 of the Turkish Constitution states that the democratic, laic, social law state principles are invariable by going beyond the Article 152 of the Romanian Constitution.

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The Constitution does not only set forth the qualities of the state, but also separately regulate what are the duties of the state in a separate article. According to the 5th article of the Constitution entitled as "the fundamental aims and duties of the state":

"The fundamental aims and duties of the State are to safeguard the independence and integrity of the Turkish Nation, the indivisibility of the country, the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence 9."

While the state is described like that, there is also a description for fundamental rights and freedoms. According to the 12th article:

"Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family, and other individuals."

Regarding how to limit the fundamental rights and freedoms, the 13th article of the Constitution which was inspired from the judgments of the ECHR is as follows:

"Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality."

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The Confederation of the Disabled and the Turkish Federation of Blinds suggested the addition of the expression of “figting against discrimination� in the constitution discussions continuing in Turkey.

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In light of this principle, it can be said that the 1982 Constitution has a parallelism with the western constitutions and largely bears the liberal doctrine of natural law. However, the social rights are not excluded in the Constitution. 24 of the 67 different articles which are specific to the subjective fundamental rights are located in the "Social and Economic Rights and Duties"; three of which regulate the right to work.

Although it as a positive situation since the social rights are critically important for the disabled, the 65th Article of the Constitution that say that the State will implement its duties set forth by the Constitution in the social and economic domain "within the capacity of its financial resources, taking into consideration the priorities appropriate with the aims of these duties." and the Article 91/1 which states that the social and economic rights can be regulated with decrees as well as the Article 148 / 3 which says that only the fundamental rights "under the scope of the European Convention on Human Rights" may be subject to constitutional complaint make the social rights the "stepchild" (KaboÄ&#x;lu, 2010: 43; Ĺžirin, 2014: 342).

2. The Special Fundamental Rights and Freedoms Regulations Regarding Disability Rights In addition to the general provisions which are quite important for the disabled in the 1982 Constitution, there are also subjective fundamental rights which are valuable for the disabled, as well. However, some of these focus specially on 'the disabled'. The articles in question include "equality before the law" (art. 10), " provisions relating to labor" (art. 49-50), "Persons requiring special protection in the field of social security" (art. 61), "Right to enter public service" (art. 71) and "Duties and powers of the President of the Republic" (art. 104).

That statement regarding the duties and powers of the President of the Republic is related to the president having the right "to alliviate or remove the punishment of certain people due to permanent illness, disability and aging." Therefore, it is not directly related to the rights to work of the disabled. However, the other articles can be said to be directly related to the right to work of the disabled.

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a. Texts of the Articles

The most important special fundamental rights regulation in the Constitution regarding the right to work of the disabled is related to the right to equality. Used as the synonym of the non-discrimination clause, that article is exactly as follows:

X. Equality before the law ARTICLE 10- Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds.

Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice. Measures taken for this purpose shall not be interpreted as contrary to the principle of equality.

Measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of the principle of equality.

No privilege shall be granted to any individual, family, group or class.

State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.

The provisions of the Constitution regarding the right to work are as follows:

V. Provisions relating to labour A. Right and duty to work ARTICLE 49- Everyone has the right and duty to work.

The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labour, to promote labour, to create suitable economic conditions for prevention of unemployment and to secure labour peace.

B. Working conditions and right to rest and leisure ARTICLE 50- No one shall be required to perform work unsuited to his/her age, sex, and capacity.

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Minors, women, and physically and mentally disabled persons shall enjoy special protection with regard to working conditions.

All workers have the right to rest and leisure.

Rights and conditions relating to paid weekends and holidays, together with paid annual leave, shall be regulated by law.

The part directly related to the disabled in the social security rights is as follows: X. Social security rights (...)

B. Persons requiring special protection in the field of social security ARTICLE 61- The State shall protect the widows and orphans of martyrs of war and duty, together with invalid and war veterans, and ensure that they enjoy a decent standard of living.

The State shall take measures to protect the disabled and secure their integration into community life.

The aged shall be protected by the State. State assistance to, and other rights and benefits of the aged shall be regulated by law.

The State shall take all kinds of measures for social resettlement of children in need of protection.

To achieve these aims the State shall establish the necessary organizations or facilities, or arrange for their establishment.

Finally, the Constitution includes a special provision regarding the disabled in terms of the public employees:

IV. Right to enter public service A. Entry into public service ARTICLE 70- Every Turk has the right to enter public service.

No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service.

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b. Reviews

The 1982 Constitution is obviously not a constitution which overlooks the disabled.

However, just as the fact that you cannot sweeten a paper by writing 'sugar' on it, giving some place in the text of the Constitution for the disabled does not mean that the disability rights are always effectively protected. In that regard, the text has to be tested with practice.

i. Regarding the negative liabilities

The provision of the Constitution that gives negative, in other words avoidance, duties regarding the disabled is the Paragraph 1st of the Article 10th in the Constitution that regulates the prohibition of discrimination. In this paragraph, some of the traditional "questionable basis" is clearly mentioned in terms of discrimination. However, "disability" is not among those clearly listed in the article. The prohibition of discrimination based on disability is seen in the expression of the article saying that discrimination cannot be made "on any such grounds".

Although many constitutional changes have been offered in Turkey, there have been no proposals for clearly adding "the prohibition of disability-based discrimination" to the article.

When the preparatory meetings and the records of the Constitution are examined, there is no view found on this issue. Thus, intentionally or not, this issue has been neglected. The neglect in question still continues. Neither the draft of the constitution prepared in 2007 by the ruling party (http://tinyurl.com/nx7ywgv), nor the works of the Commission established for the new constitution (Bar覺n, 2014) specify the expression "disability based discrimination". The most open proposal on this issue has been recently put forward by the Alt覺 Nokta Association for the Blind, the Confederation of the Disabled and the Turkish Federation of the Blind.

According to the report prepared by these organizations, the expression of "on the basis of disability" should be added to the article in question which regulates the right to (http://tinyurl.com/llvpdgf).

The opinion of the Constitutional Court (AYM) is that big issues not to be discriminated in terms of equality shall not be limited with those listed in the text of the article. According to the AYM, unlike the previous constitutions, in the 1982 Constitution, "the issues not to be discriminated have been expanded by setting the principle of making no discrimination [for

25

the similar reasons] and thus, clarity have been obtained in terms of the implementation of the rule (AYM, 1986). In a recent judgment of the constitutional complaint, the AYM states in a decision of a principle regarding the prohibition of discrimination that "the prohibition of discrimination includes the offer of opportunities or the rejection of the deprivation of opportunities due to a personal future that cannot be preferred such as gender, race, disability and age or due to the personal preferences which are the elements of the personality of the individual such as his religion (AYM, 2014 114), political opinion, sexual and gender identity." Although the case in question is not directly related to the disabled 10, this decision is the first jurisprudence of AYM in which it clearly lists "disability" among the bases of discrimination.

The traditional and established jurisprudence of AYM regarding the principle of equality is as follows:

"The principle of equality set forth in the Article 10 of the Constitution is valid for those whose legal status is the same. This principle anticipates not actional, but legal equality. The purpose of the principle of equality is to ensure that the people in the same situation are subjected to the same procedures before the law and to prevent discrimination and privileged treatment. This principle also prohibits the violation of equality before the law by implementing the same rules to the people and communities in the same situation. Equality before law does not mean that everybody will be subjected to the same rules from all aspects. The features of their situation might require different rules and practices for some people or communities. If the same legal cases are subjected to the same rules and if the separate legal situations are subjected to different rules, the principle of equality predicted in the Constitution is not injured (AYM, 2011)."

As is known, this approach inspired by "the separate but equal doctrine" of the US Supreme Court might be used in the legitimization of some types of discrimination. If this doctrine is implemented without considering "reasonable harmonization", it will possibly create problems for the disabled. For instance, when we consider that the practice in Germany about sending the disabled to different schools in their education life is legitimized within this 10

The subject of the case is related to the claim that an attorney with head scarf ws exposed to discrimination in terms of the right to work when she was banned from working with head scarf.

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approach (Degener, 1995: 97), it should be noted that disability is a suspicious discrimination basis in both work life and other living spaces and different treatments regarding disabilities (in terms of burden of proof rules, the narrow interpretation of legitimization etc.) should be approached sensitively.

The Turkish Constitutional Court has been examining the constitutional complaints set by the victims along with the tangible and abstract norm inspections since 2012. Thanks to this application procedure, everybody including the disabled can make a constitutional claim regarding the violation of their foundational rights. However, according to the article 148 in the Constitution, only foundational rights and freedoms under the scope of the European Convention on Human Rights can be subjected to constitutional complaints. The article 45/1 of the law regarding establishment of the Constitutional Court and the trial procedures no.

6216 which regulate the details of the constitutional complaint institution state that the additional protocols in which Turkey is not a party are not under the scope of the constitutional complaint. Turkey is not a party to the additional protocol no. 12 which regulates 'the general prohibition of discrimination' (art. 1). Therefore, when the prohibition of discrimination in terms of a right which is not under the scope of the ECHR is violated, it cannot be subjected to constitutional complaint. In that sense, for instance when a disabled person claims a violation in terms of the right to work through the constitutional complaints, the issue shall be out of the jurisdiction of the Constitutional Court (AYM, 2013a: 33).

So far, the AYM have not given any resolutions on the right to equality of persons with disabilities in its jurisprudence. Although the AYM has started an analysis technique in parallel with the ECHR decisions thanks to constitutional complaint cases, it could not deepen the discrimination analysis techniques and could not transfer the basic concepts related to discrimination law such as "direct discrimination", "indirect discrimination", "resulting

discrimination",

"harassment",

"reasonable

harmonization",

"multi-base

discrimination" to the national jurisprudence.

ii. Regarding the Positive Liabilities

It is controversial in the Turkish doctrine that what constitutes the provisions that bring positive obligations to the state in terms of the disabled in the Constitution. Namely, during the constitutional amendment in 2010, the 2nd paragraph of Article 10th of the Constitution

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was added a paragraph stating that "measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of principle of equality.” This paragraph has been included in the Constitution as part of a constitutional reform package that includes changes in numerous articles and as a result of the referendum. When the statement regarding this matter in the pre-referendum process is monitored, we see that it was expressed that the article brought about the liability of "making positive discrimination" or "positive act" in favor of the mentioned subjects (http://tinyurl.com/oy6guwy; in the same direction AYM, 2012: Engin Yıldırım’ın karşı oyu).

Despite such thoughts, it is considered that the mentioned provision in reality does not impose a special obligation to the state. Indeed, although controversial, this clause falls behind the provisions of Constitutions of other countries that are claimed to bring constitutional obligations to the state. Namely, the provision added to Article 10 of the Constitution does not have a similar nature to the provision "legislature takes the measures to eliminate disadvantages affecting people with disabilities" in the Swiss Constitution (Art. 8/4) or the provision in the Fiji Constitution (Art. 38/2) saying that "everyone has the right to enter shops, hotels, guesthouses, public entertainment venues, public transport services, taxi and public spaces without being discriminated against any prohibited basis [such as disability]”. While even the given examples are questionable since it is not certain whether the state has an obligation to take special precautions, the provision in question cannot be claimed to lead to any improvement regarding special measures since it is considered that it express a much more backward position. The 2010 amendment did not effectively impose any obligation to have a positive action and remained limited to repeat an assurance that already exists (Şirin: 2015: 90).

If any provision is searched that imposes positive action in favor of the disabled on the state in the 1982 Constitution, it will be the 5th article entitled as the "aim and duty of the State" rather than Article 10th. In this article, the duty of the state is arranged as “to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law”. When the wording of the Article is taken into account, the Article 10 of the Constitution can be expected to be systematically reviewed together with this article. Yet, AYM pursued a fluctuating course for many years regarding whether the

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Article 5 of the Constitution contains a positive action (Oder: 208 et al.). Once it started making the constitutional complaint decisions, it begin using this material as the basis for a positive obligations doctrine steadily (AYM, 2013b: 30), but it has not yet considered the issue in the context of prohibition of discrimination.

The provisions which impose more open positive obligations to the State with respect to Article 10 regarding the disabled are outstanding in the Constitution under the of the right to work and right to social security. Especially in the 50th article regarding the right to work, the provision "(physically and mentally disabled persons, shall enjoy special protection with regard to working conditions)” and the provision "(the State shall take measures to protect the disabled and secure their integration into community life)” in the 61st article in terms of social security rights are quite valuable.

Given the rationale of these provisions of the Constitution, these articles seem to be penned as "directives". Similarly, in the grounds of the Article 61, the emphasis that "the State shall take measures to ensure the employment of the disabled, to exempt them from some taxes and rehabilitate them" (Sezer, 2004: 175) is also important.

As we have seen, the text of the Constitution contains numerous provisions that impose positive obligations to the state regarding the right to work for the people with disabilities.

The AYM, however, has been inefficient in terms of using this material and revealing the norms.

When the AYM's jurisprudence is examined, we see that it suggested the State should take the necessary measures to ensure employment for those who want to work regarding the right to work in many of its decisions (AYM, 1989); and repeated that the fact that working defined as a duty, besides being a right is a consequence of the respect of the individual towards society and himself; in this direction, the person can avoid being a burden on society and other community members in general (AYM, 1989). Stating that the state's obligation is to the extent of its financial opportunities in all this jurisprudence (AYM, 1983), AYM could not develop a case law of core obligations regarding such social rights neither for persons with disabilities nor others. However, ‘the ban on the interference with the self’ in the Constitution's Article 13 is appropriate for such a case law expansion.

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The general trend of the AYM to check the compliance of its cases with the rule of law without a thorough technical assessment. This complicates making a consistent and systematic assessment about how the AYM considers specific issues. This applies to different cases which have the guidance qualification (Orientierungswirkung) as well as the cases directly related to the right to work of the disabled. There are two judgments in the AYM case law that can be considered in connection with the right to work for the disabled.

The first judgment important in terms of showing the difference when the state implements a positive action due to the state's positive obligation will not be deemed to be contrary to the constitution. The subject of the case is related to the income tax deducted from a disabled lawyer. To give the two preliminary pieces information for a better understanding of the case; The Turkish tax system makes a "disability allowance" in determining the income tax base.

The Article 58th of the Income Tax Law on taxation in Turkey introduced "standard of living presumption system". In this system in the nature of a tax security institution, the "standard of living" is set before a tax is levied. In determining this standard, the living standard reached by the income tax payers in a province and it is assumed that the income of the agricultural, commerce and professional workers will not remain below the set standard of living. If a lawyer does not have an income to state, he is deemed to earn as much as the standard of living; if he declares an income more than the standard of living, the income tax base is determined over it.

In the mentioned case, the local court which is trying a case in which a disabled lawyer defends a party decided it was unconstitutional to apply the relevant article of the Income Tax Law about disability allowance only to those taxpayers who have an income above the standard of living and brought the subject to the AYM. According to the consistent grounds of the Local Court;

For the prosecuting attorney, there is no difference between earning above or under the living standards up to a certain extent (up to the amount of disability allowance) and the disability allowance is linked to a limit. This results in that the same tax should be paid up to a certain amount. (...) There is inequality between those who inherently have to put more effort to work and those who inherently work easier; and it is seen that the disabled freelancer worker under constitutional protection is not

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protected at this point and is not encouraged, which is clearly against [the Constitution] (AYM, 2003).

The AYM has opted to ignore the disabled nature of the applicant and to address the issue as the constitutionality inspection of a general tax liability, rather than a case within the scope of the prohibition of discrimination. According to the AYM:

The legislature can set different criteria for the taxation of income, wealth and spending such as the subject, quantity and quality in line with the constitutional principles and can determine different liabilities and rates depending on the amount and factors of the income.

The income to be taxed by the Income Tax Law is the net amount of income, revenues and earnings. The tax is levied on the gross amount of income. The taxation of the actual amount of income is a requirement of taxation based on financial power to ensure fair and balanced taxation distribution as well as being a welfare state obliged to carry out a fair tax policy. It is natural that the people who have reached the same living standard are subjected to the same rules, and it is not contrary to Constitution’s Article 2 of the rule of law and Article 73 which determines the basic principles of tax assignment when no distinction is made between them considering their specific situation (AYM, 2003).

As seen in the AYM’s "non-justified grounds," the Court did not take the specific situation of disabled taxpayers into account. However, the 50th article of the Constitution stating that "physically and mentally disabled persons shall enjoy special protection with regard to working conditions" could be a case of assesment in the present case. However, this provision has been ignored. In addition to this negligence, since there are no clear directives or special measures provision in Article 10 of the Constitution regarding discrimination in favor of the disabled, the AYM could decide that this issue is within the discretion of the legislature without a comprehensive debate. This example sets the critical difference between the existence and absence of a positive action obligation or specific measures provisions in the non-discrimination article of the Constitution.

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The second judgment on the matter is related to the provision in the Labour Law which imposes the obligation to employ a disabled or ex-convict to the employer. An employer did not employ any disabled or ex-convicts despite the conditions stipulated by law, and therefore, received administrative penalty. In the lawsuit filed for the cancellation of this penalty, the court brought the provision which impose the obligation to employ the disabled and ex-convicts in the Labour Law for concrete norm control to the AYM. The argument of the local court is as follows:

(...) Although the Article 48 of the Constitution states that establishing private enterprises is free and the Article 18 prohibits forced labor, limiting the freedom of contract of the private enterprise and forcing it to employ the disabled and ex-convicts who will not be productive in the workplace and will not contribute to the work life and the efficiency of the commercial company for the employer constitute a violation of Article 48 of the Constitution, and since imposing an obligation to pay salaries to the people not desired in the workplace can be considered under the indirect forced labor ban, it is also contrary to Article 18 of the Constitution.

The social law state shall provide the sources required to fulfill its responsibilities entrusted by the Constitution through taxes using the specified measurements and methods stated in the Constitution, and when the resources allocated to social spending are inadequate, instead of the transfer of responsibility, it shall encourage the participation of the people to this expenditure.

Since the protection rehabilitation, social resettlement, employment and ensuring a standard of living worthy of human dignity of the disabled, ex-convicts and terror victims is a task directly given by the Article 61st in the Constitution to the State itself, there is no reliability with the Article 61st when this assignment is loaded disproportionately to the private enterprise whose purpose is profitability as stated in the Article 30th of the Law no. 4857.

In this case, it was concluded that the Articles 30th and 101st of the law no. 4857 which are the subjects of objection are contrary to the provisions of the Constitutional requirements of social law state, the rule on the prohibition of forced labor and freedom of contract

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In this concrete norm control file which is based on the allegation that the disabled quota in national legislation is a violation of the forced labor ban (AY Art. 18) and contractual freedom (Art. 48), AYM referred to the systematic review method and rejected the case as follows:

"The liability to employ the disabled is based on the idea of protecting those who lost their employment opportunities significantly due to lack of mental or physical capabilities. Since the provision in the second paragraph of the article 50 of the Constitution stating that “physically and mentally disabled persons shall enjoy special protection with regard to working conditions” guarantees the special patronage of the disabled, the rule is a requirement of the Article 50 of the Constitution in terms of the disabled. The liability imposed by the rules aims at ensuring the disadvantageous people in the work life due to their disability lead a life worthy of human dignity by incorporating them to the work life, therefore, it is a consequence of the social state principle in the second article of the Constitution. In the justification of the article 61 of the Constitution, the state is assigned the obligation to "ensure the employment of the disabled" by stating that “the State shall take measures to ensure the employment of the disabled, to exempt them from some taxes and rehabilitate them” and to take measurements to ensure execution of the private enterprises "in line with the social purposes" with the provision in the second paragraph of the article 48 saying that “the State shall take measures to ensure that private enterprises operate in accordance with (...) social objectives”. When considered along with the obligations in question assigned to the State by the Articles 61st and 48th of the Constitution, the rule envisaging the obligation to employ the disabled in the private and public sector is deemed as a consequence of the principle of social state and pursues social aims. In addition, there is no disproportion in the rule regarding private sector (AYM, 2008).

Following these two judgments, we can conclude as follows regarding the Turkish law. The Constitutional legislation includes directives for the legislature and is suitable to bring in positive action obligations in favor of the disabled especially in the work life to the State.

However, AYM does not use these articles effectively and stays behind the text of the Constitution, because AYM has the tendency to ignore the positive discrimination in favor of the disabled as a constitutional directive. The approach of AYM means that the positive

33

action or inaction of the State in favor of the disabled shall be deemed in accordance with the Constitution. In other words, this issue, on the contrary to the Constitution, is left completely to the sole discretion of the legislature.

II. IN TERMS OF THE INTERNATIONAL HUMAN RIGHTS LAW The 1982 Constitution is a fellow constitition with the international law in its current form. It is stated that the Republic of Turkey is an honorable member of the family of world nations with equal rights (Preamble) and is a state based on/ respectful to human rights (Articles 2, 4). The 5th paragraph of the Article 90 of the Constitution which makes references to the international law and agreements in numerous articles (Articles 15, 16, 38 / last, 42 / last, 92, 125/1, 148 / 3) is as follows:

"International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail."

According to this article, the human rights conventions in which Turkey is a party can be directly applied in the domestic law just as the other laws and are put into a position superior than the law which conflict with them. According to the AYM, the practitioners who have to implement a provision of the conflicting law and then international convention about fundamental rights and freedoms, especially the judicial authorities, on the case before them are obliged to implement the International Convention by ignoring the domestic law (AYM, 2013c: 41). This rule is a rule of implied abolishment and abolishes the implementation power of the rules of law which conflict with the Convention regarding the fundamental rights and freedoms (AYM, 2013c: 44).

In addition, the AYM pointed out that the practice in question is not limited to the text of conventions and they also apply for the case laws of the bodies that decide regarding the mentioned conventions (AYM, 2013c: 46).

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In this case, the conventions regarding the rights of the disabled and the right to work in which Turkey is a party as well as the decisions and interpretations of the authorized bodies appointed to evaluate these conventions are directly applicable in the Turkish law without considering the possibility of a conflict with the national legislation. Moreover, no claim of unconstitutionality can be alleged against this norm.

Turkey has signed important documents which could be considered related to the right to work of the disabled. Although not directly related to the disabled, Turkey signed the European Convention on the Protection of Human Rights and Fundamental Freedoms including the provision of prohibition of discrimination and providing reflective protection as well as the Protocol changing the European Social Charter and the Revised European Social Charter. Turkey has not recognized the right to collective complaints to the European Committee of Social Rights. Turkey has not yet ratified Appendix No. 12 Protocol to the ECHR containing a general prohibition of discrimination.

Additionally, Turkey is party to numerous International Labour Organisation (ILO) Conventions (53 of them in force). Turkey is party to the ILO's Discrimination (Employment and Occupation) Convention dated 1958 and numbered 111 specifically concerned with the right to work of people with disabilities, and the Convention Concerning Vocational Rehabilitation and Employment of the Disabled dated 1983 and numbered 159. All provisions of this Agreement can be applied directly without any claims of unconstitutionality in Turkish law.

Turkey has to take into consideration of all Rec (2006)5 recommendation decisions (the Council of Europe the Disabled Action Plan 2006 - 2015 to encourage the full participation of the disabled to the society and their rights) which are produced by the Council since Turkey is a member of the Council of Europe.

Since Turkey is not a member of the EU, the EU law is not directly applicable in Turkey.

Turkey approved the Convention on the Elimination of All Kinds of Racial Discrimination, the International Convention on the Civil and Political Rights, the International Convention on the Economic, Social and Cultural Rights, the Convention on the Prevention of All Kinds

35

of Discrimination Against Women, Convention on the Rights of the Child, the International Convention on the Protection of the Rights of All Migrant Workers and Their Family Members which are in the UN system. Among these, Turkey did not grant the right of individual petition to the Committee of Prevention of Racial Discrimination, the Committee on Children's Rights 11, the Committee on Economic, Social and Cultural Rights and the Committee on the Protection of the Rights of the Migrant Workers and Their Family Members 12.

The most important international text related to the disabled rights in the UN system is the International Convention on the Disability Rights. This convention was opened for signature on March 30, 2007 and entered into force on May 3, 2008 with the approval of 20 States.

Currently there are 159 states including the European Union which have signed in the text in question. Apart from that, there has been an optional Additional Protocol regarding the authority of a Commitee of Disability Rights regarding these issues which examine the individual applications of the people or groups of people whose rights in the convention are violated. This additional protocol regarding the recognition of the authorities of the Commitee which will inspect the disability rights prescribed in the convention was signed by 151 states and has been ratified unfortunately by only a 85 of (Şirin, 2015: 84-85).

Turkey is among the countries which signed the Convention on the very first day. It ratified the Convention on October 28, 2009 and signed the Additional Protocol. Although a period of more than five years passed after the signature of the additional protocol, Turkey did not complete the ratification process of the Additional Protocol. Although there were comprehensive propaganda regarding that the 2010 constitutional amendment made changes in favor of the disabled, the approval law which required a lower rate than the constitutional amendment was not put on the agenda of the Parliament and the issue was subjected to criticism (Şirin, 2015).

That parliamentary question in 2013 by the we İzmir deputy Hülya Güven from the main opposition party the Republican People's Party about why the additional protocol was not put into the agenda of the Parliament and when it would be ratified was replied with the already known information stating that the convention entered into force with the approval of 20 11 12

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The additional protocol was signed but not ratified.

The statement sayts that it shall recognize the authority of the Commitee soon.

states and the additional protocol was put into effect with the approval of 10 countries, and the convention is already in force in Turkey and the additional protocol was signed by Turkey. It was expressed that the signature to the additional protocol meant a positive intention for ratification (http://www2.tbmm.gov.tr/d24/7/7-21559sgc.pdf).

Finally on 2.10.2014 the ratification of the "Additional Optional Protocol to the Convention on Disability Rights" which was found appropriate for ratification with the law number 6574 and dated to 3.12.2014, following the writing of the Ministry of Foreign Affairs no. 7287167 and dated to 29.12.14 and was decided by the Council of Ministers on 26.1. 2015 in accordance with the 3rd article of the law no. 244 and dated to 31.5.1963. Therefore, it became possible to make an individual application to the Commitee 13 after all regular remedies have been exhausted against the public power of Turkey.

Here it should be noted that in the individual applications made to Commitee should consider the decision of the Law no. 6353 which was issued to transfer the Article 9 of the Convention entitled as 'accessibility' and entered into force in 2005 regarding the modifications on the temporary Second and Third articles added to the "Law on Making Amendments on the Disabled and Some Laws and Decrees 14" no. 5378 about the regular effective remedies.

The temporary article 2 among the articles in question included the provision that "all the available official buildings, available roads, sidewalks, pedestrian crossings, open and green zones, sports areas and similar social and cultural infrastructure areas belonging to the public institutions and organizations as well as all kinds of buildings serving the public built by the real and legal persons shall be made suitable for the accessibility of disabled within 7 years following the date when this Law enters into force". Temporary Article 3, on the other hand, includes the provision that “the metropolitan municipality and municipalities shall take the necessary precautions for making the public transport services suitable for the accessibility of the disabled within the city offered by themselves or under their control. Available private and public transport services shall be made accessible for the disabled within 7 years after this law enters into force." However, the law which entered into force on 07.07.2005 extended the envisaged seven year period which was complete on 08.07.2012 through some

13 14

By October 2014, a member from Turkey (Ĺžafak Pavey) was selected to the Commitee (CRPD, 2012).

It was changed into the Law on the Disabled People.

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amendments 15. When the extension was brought before AYM, the Court did not see any unconstitutionality regarding the issue. However, as also expressed by Engin Y覺ld覺r覺m who voted against it:

"There is no guarantee that this gradual transition which could not be implemented in 7 years will be performed over a period of 1 + 2 years. Therefore, we might face a situation in which the gradual transition continues forever. This issue is related to economic, social and cultural rights and it should be performed urgently in order to facilitate the access of the disabled to their civil and political rights. This situation is not compatible with the Article 10 of the Constitution which envisages positive discrimination for disabled people. The failure to ensure the accessibility for the disabled within a transition period of 7 years and the procrastination of the performance of the accessibility for 3 more years is contrary to the Article 10 of the Constitution (AYM, 2012)."

This legislation, the case law related to the law and the counter vote should not be ignored in the future applications regarding the accessibility about the right to work of the disabled.

After this record, we can move on to the decisions of the Committee which have a guiding power in the Turkish law and are at the status of a law in terms of their materiality in accordance with Article 19 of the Constitution. The important decision in this sense is the decision of the Committee regarding Liliane Gr繹ninger v. Germany (CRPD, 2010). In this case, the applicant complained that the practice procedure of the Social Security program principally pushes his disabled son out of the work life. The German Social Security Law foresees the payment of premiums for the people who experienced total loss of workforce and can go back to their previous situation in 36 months. The necessary legal conditions for the payment of the premium are the job offer by an employer and its implementation.

Employment agency evaluates this situation and then decides the amount and duration of the premium. Based on the concrete event, the Committee evaluated the program in question and found that the program did not prevent pushing the disabled out of the work life. The Committee considered the premium payment of the State to the people employing the disabled in favor of the disabled and encouraging for the employers, however, it concluded

15

38

See. Chapter 4, II.

that the system in question makes the disabled people disadvantageous and caused indirect discrimination since the system imposed additional application procedures for the employers; and the amount and duration of the premiums are not certain; and the disabled person is not the determining subject of this process. In that sense, the committee concluded that the system violates the right to work and employment (article 27/11 h) under the general principles (article 3 a, b, c), general obligations (article 4 / 11 a) and the prohibition of discrimination (article 5 / 11) stipulated in the Convention.

This statement of the Committee cannot be interpreted to become effective only in Germany.

This statement brings the obligation to the States who are parties to the Convention to ensure that no additional application procedure is imposed on the employers and the premium payments to the people who employ the disabled, and to determine the amount and duration of the premiums in a predictable way and to make the disabled person the decisive subject of this process.

Regarding whether the Social Security system in Turkey has such a quality, it should be noted that the obligation to establish a system as pointed out by the Committee is not a preference to be chosen by Turkey and the other states which are parties to the Convention, but a requirement. This obligation might bring in some financial obligations to the State.

However, it is not possible to categorically get rid of this obligation by putting forward the excuse of "the inadequacy of the financial sources" expressed in the Article 65th of Constitution.

Another application regarding the right to work of the disabled brought before the Commitee was Kenneth McAlpine v. the United Kingdom (CRPD, 2011). The subject of the case in question was the termination of the labor contract of a disabled person who returns from the resting hours late and the claim that it creates discrimination. The Committee rejected this application based on the lack of jurisdiction in terms of the time and did not make any assessment on the merits.

Although the Committee did not make any decisions on this matter, we can say that in the case in question, the fact that the disabled person comes back to work late is counted as a justified reason for termination is an indirect discrimination. In fact, the termination of the labor contract of the people who come to late is applied to everyone the same way and is

39

impartial at the first glance. However, the implementation of the norm with a narrow and strict manner might create more negative impacts different from the others or even more than them depending on the situation. It is clear that such an effect is indirect discrimination.

In addition, discrimination based on disability does not always make it a must to be a disabled on whom the treatment is directly implemented. In case a non-disabled employee who has a disabled child requests more flexible work hours to take care of his child, the rejection, abuse of this request and his dismissal due to late arrival might create "hence discrimination" (ECJ, 2008).

We will later return to the related regulations and Supreme Court decisions in Turkey16. But it should be noted that, with the explicitness of the constitutional law to the international law and judicial bodies, the supreme constitutional laws directly load the executive, legislative and judicial powers in the professional life and in the other fields, indirectly because of the transferred type and therefore with charge to remove the discrimination types. In case that this charge is not realized by the executive, legislative and judicial powers, the Constitutional Law will be deemed violated. Therefore, in the present norms, it is necessary to comment in accordance with the international laws and constitutional laws, and if not possible, these shall be submitted to the Constitutional Court for abstract and concrete norm check.

Lastly, Turkey is a party to many of the agreements (53 agreements in force) of the International Labour Organisation. Turkey is also party to the ILO Agreement about the Vocational Rehabilitation and Employment of the Disabled with number 159 and date 1983 which is related to especially the employment rights of the disabled. All of the conditions of this agreement are directly applicable without the constitutional objection in the laws of Turkey.

16

40

See. Chapter 3, II, 3.

CHAPTER THREE EMPLOYMENT OF THE DISABLED UNDER THE BUSINESS LAW AND THE ADMINISTRATIVE LAW (Assoc. Prof. N. Münci ÇAKMAK - Res. Assist. Canan ÜNAL) 17

I. THE DISTINCTION OF WORKER AND CIVIL SERVANT IN THE TURKISH LAW There is no single regime for employees in the Turkish law. Therefore, disabled employees have been subjected to different branches of law. This report will examine disabled workers as dependent employee groups in terms of the workers and the civil servants. To know whether the person (disabled or non-disabled) is a worker or a civil servant is important to determine the law to be applied to him. Although workers are subject to the Labor Law, the civil servants are subject to the rules of the Administrative Law. In another approach, workers are subject to private law, while civil servants are subject to public law.

In this context, first, the explanation regarding disabled employees will be discussed. Worker is defined as the real person who works dependent in exchange for a salary based on a business contract. There is a strict dependency between the employer and the disabled employee which are subject to the Labor Law of the disabled. This dependency is a personal dependency and the parties are not equal. Therefore, in accordance with the contemporary legal systems, the Turkish Labor Law is considered as the law of protection of the workers and includes regulations which protect the workers. In case the worker is disabled, it is obvious that the need for the protective regulations will increase.

The dependent disabled employees can also work as a civil servant or as another public official. According to the article 128 of the Constitution, the fundamental and permanent functions required by the public services that the State, state economic enterprises and other

17

In this chapter, the titles “Distinction of Workers and Civil Servants in the Turkish Law”, “Employment of the Disabled under the Labor Law” and “Employment of the Disabled under the Administrative Law” were respectively authored by Assoc. Prof. Dr. Münci Çakmak and Res. Assistant Canan Ünal; Res. Assistant Canan Ünal; and Assoc. Prof. Dr. Münci Çakmak, the responsibilty of each chapter belongs to the authors and the references should be made to the authors themselves.

41

public corporate bodies assigned to perform in accordance with principles of general administration, shall be carried out by public servants and other public employees.

According to Article 4 of the Law on Civil Servants no. 657, “the public services are performed by the civil servants, contractual employees, temporary personnel and workers.” In the following articles, these concepts are defined. According to Article 4 of the Law no. 657:

A) Civil Servant: “Regardless of the type of the organization, those who are employed to perform the main and permanent public services which are carried out in accordance with the general administrative principles by the state and other legal persons are considered civil servants in the implementation of this law.

Those who are assigned and authorized in the works such as general policy determination, research, planning, programming, management and supervision in institutions other than those defined above are also considered civil servants.”

B) Contractual personnel: “These are their public service officials who are not considered workers and are determined to be employed with a contract limited to the financial year at the position given by the Minister of Finance upon request of the institution and the opinion of the State Personnel Department under the principles and procedures determined by the Council of Ministers at the temporary work requiring special professional knowledge and expertise which are limited to the indispensable and exceptional cases which are essential for the preparation, validation, operation of the important projects in the development plans, annual programs and business programs.

C) Temporary personnel: These are the people who are not considered workers and are employed with a contract within the limits of a determined salary and numbers at the position determined by the Council of Ministers depending on the opinions of the State Personnel Department and the Ministry of Finance for less than a year or when there is a seasonal service.

42

D) Workers: “These are the temporary workers employed with the contract for a certain period of time less than 6 months at the temporary job positions in accordance with the relevant legislation in the seasonal or campaign work or the services against forest fire as well as the permanent workers who are employed with indefinite term employment contract at the positions allocated in accordance with the relevant legislation and are outside those specified in the paragraph A, B & C. The provisions of the law are not applied about these workers.

According to the Article 5 of the Law on Civil Servants no. 657, it is regulated that the institutions subject to Law 657 cannot employ any personnel outside the employment forms written in the fourth article.

The concept of other public officials in the Constitution as well as the contractual personnel and temporary personnel specified in the Civil Servant Law no. 657 are technical classifications and are located beside the status of civil service which is a general rule.

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II. EMPLOYING THE DISABLED UNDER THE LABOR LAW (Res. Assist. Canan ÜNAL)

It is possible to examine the regulations in the Turkish law about the disabled who work and will work with any an employment contract under four titles. These are (i) preparing the disabled for employment, (ii) the obligation to employ disabled workers and protected workplaces and incentive methods and (iii) disability based discrimination. There have been significant amendments in the legislation regarding the disability rights especially recently in the Turkish law. This report will explain the arrangements which are the achievements as a result of these amendments; and the aspect of the regulations which are open to criticism will also be examined.

1. Preparing the disabled for employment and mediation According to the 2010 data of the research on the problems and expectations of the disabled by the Turkish Institute of Statistics, 41.6% of disabled individuals are illiterate while 18.2% could not finish school although they are literate. While the rate of primary school graduates is 22.3%, those who could finish the primary school and secondary school and equivalent are 10.3%. Those who could complete the minimum high school education are just 7.7% 18.

Compared to individuals without disabilities, the disabled individuals need more vocational training due to their disability. In this context, it is a requirement due to equality principle of the Constitution to provide vocational training. However, the data states that these individuals lack the assurance required for the right to education beyond the deficiencies regarding the vocational training of the disabled.

The same research states that the 25.6% of the disabled people expect the increase of their educational opportunities, while 28.7% expect the increase of their employment opportunities. 19 The data are related to the individuals who were 6 and more, TÜİK, The Survey on the Problems and Expectations of the Disabled, 2010, Distribution of the Gender, Location, Disability Rate, Age Group and Education Level of the Disabled Individuals (http://www.tuik.gov.tr/PreTablo.do?alt_id=1017, Accessed on: 06.04.2015).

19 TÜİK, The Survey on the Problems and Expectations of the Disabled, 2010, The Distribution of the Expectations of the Registered Disabled Individuals from the Public Institutions and Organizations According to the Disability Type (http://www.tuik.gov.tr/PreTablo.do?alt_id=1017, Accessed on: 06.04.2015).

18

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Regarding the vocational education, both the Law on the Disabled no. 5378 20 and the legislation on the Domestic Employment Services 21 include regulations and also include the articles which are about providing guidance and professional consultants and education services for professional habilitation, rehabilitation, guidance to establish own enterprise for the disabled.

According to the law, the necessary precautions are taken to ensure that the disabled can choose a profession and receive education in that area. In accordance with the profession and business analysis made by the Ministry of Labor and Social Security, professional habilitation 22, rehabilitation 23 and education programs are developed by the Ministry of Education and the Ministry of Labor and Social Security (art. 13).

The legislation on employment which regulates the procedures and principles regarding the services offered by the Turkish Employment Institution to those who seek jobs as well as the employers (m. 12/I).

The Turkish Employment Institution considers the qualities and the conditions required by the professions as well as the features of the disabled people. Then, it guides the choice of the most suitable job and profession according to the desires and situation and makes sure that they benefit from the related training opportunities about the profession and applies the vocational training, guidance and rehabilitation programs or vocational training programs at the right places in the recruitment process and employment articles (art. 12/I) 24.

20

RG 07.07.2005, 25868.

RG 25.04.2009, 27210.

22 Rehabilitation has been identified as the services directed to bring the disabled people the physical, social, mental and vocational abilities necessary for supplying his/her individual and public needs and maintaining an independent life (art. 3/I, h).

23 Rehabilitation is the services directed to bring the disabled people the physical, social, mental and vocational abilities necessary for maintaining an independent life and to reduce the disabilities due to any reason, as much as possible(art. 3/I, k).

24 In order to offer these services, determine the tasks that the disabled can do in the workplace and the provisions to which the disabled will be subject except the general provisions and to establish a data sharing system accessible by the institutions regarding the disabled; The Institution cooperates with the Ministry of Family and Social Policies General Directorate of the Elderly and Disabled Services, Ministry of Justice General Directorate of Prisons, Ministry of Health General Directorate of the Health Services, the Ministry of Education General Directorate of the Special Education and Counseling Services, General Directorate of the Special Education Institutions and Ministry of Labor and Social Security General Directorate of the Occupational Health and Safety. The procedures and principles regarding the cooperation are determined with protocol (art. 12/II).

21

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The fact that the Turkish employment institution can perform the services in terms of vocational rehabilitation through private real and legal persons have been considered as a positive development due to the spread of the services (Engin, 2009: 17).

2. Employing Disabled Workers a. The Obligation to Employ Disabled Workers The main method to ensure the employment of the disabled people in the Turkish law is the method of quota. The quota method limited the contractual freedom of the employers and imposes the obligation to employ disabled people at certain situations. Thus, contractual freedom which is a main principle in law has been limited with the law for social purposes and thus, the employment of the disabled was targeted. Another regulation in the statute which makes it mandatory to employ disabled employees, is the obligation for employers to employ again employees who have overcome disabilities and wish to work again. Although the disability no longer exists, the likelihood of continuing disability and the obligation to employ again these individuals can serve disability employment.

In order to have the obligation to employ disabled people in the Turkish law, first of all the workplace should be under the scope of the Labor Law or the Maritime Labor Code. There is no single labor law in the Turkish labor law. 25

i. The obligation to employ a quota of disabled employees

aa.

Overview

Article 30 of the Labor Law regulates the obligation to employ disabled employees in terms of the employers who hire 50 or more workers. According to the article in question, different rates of disabled worker quotas have been prescribed in terms of the private sector employers and public sectors workplaces. While the disabled worker quota is 3% for the private sector, it is 4% for the public places. Obviously there have been different criteria in regulating the obligation to employ the disabled for the public and private sector workplaces. The disabled

25

Aside these, business relationships are regulated in the Press Labour Law and the Turkish Code of Obligations. However, the obligation to employ disabled workers is not relevant to establishments subject to the Press Labour Law and the Turkish Code of Obligations.

46

employees within the quota should be employed in the positions suitable for their professional, physical and psychological situations.

In 2014, the number of business in Turkey, with 50 or more employees, obliged to employ a quota of disabled workers is 17,773. While a total of 108,343 disabled workers must be employed at these businesses, in reality only 84,706 have been employed (Kılıç: 2015). Thus, the quota application has achieved a success of around 78%.

bb. Determining the employer obliged to employ a quota of disabled workers Turkish law does not impose an obligation to employ disabled people for employers who hire less than 50 employees.

In determining whether employers fall within the scope of obligation to employ disabled workers, in other words while calculating whether he employs more than 50 workers, the total number of workers in all workplaces located within the borders of the same province are considered (f. 1/c. last). In other words, the total number is considered in the calculation of the number of workers, if the workplaces of the employer in different branches are located within the same province. If the workplaces of the same employer are located in different provinces, the total number of workers working at these workplaces is not considered. For instance, 40 workers work in a shoe workshop of an employer (I) in Istanbul. The same employer has fifteen employees in his olive oil workshop in Çanakkale. In that case, since the total number of workers within the same province does not exceed 50, the employer (I) does not have the obligation to employ disabled workers. However, if his oil workshop had also been in Istanbul, in that case the consequence would change and the employer (I) would have to employ disabled workers.

In determining the number of workers to be employed, workers who are employed with an employment contract for limited or unlimited period are taken as the basis. Those who work according to a contract or a partial time period are converted into full time work considering their working hours. While calculating the ratio, the fractions up to half are not considered and those which are half or more are converted into full (f. 2).

47

Regarding determining the number of workers in accordance with the prohibition to employ disabled workers in the underground and underwater works, workers in the underground and underwater work shall not be considered for the calculation according to the law. (f.4)

In addition, the workers employed by the employer under the temporary business relationship according to the provision of the Article 7th of the labor law or the apprentices and trainees are not considered in the determining of whether the employer has the obligation to employ disabled workers.

cc. The identification of disabled workers

According to Paragraph 1 of Article 30 of the labor law, those who were the employees of a business who later became disabled have priority in the identification of the disabled workers within the quota (f. 2/c. last).

The employer finds the workers that they are obliged to employ through the Turkish Employment Institution. The qualities of the workers to be employed, in which works positions they can be employed, the direction to the profession with a specific work on which they will be dependent apart from the general principles at the workplaces, and how they will be recruited by the employer in terms of their profession are regulated by the regulation issued by the Ministry of Labor and Social Security after obtaining the opinion of the Ministry of Family and Social Policies (f. 3). The regulation in question is the regulation on the recruiting services.

The regulation does not create any difference regarding the disability groups or the start of disability in terms of the disabled worker is to be employed under the quota; there is the condition that the disability should be at least 40% and should be documented with a Medical Board report. Because, according to the recruitment regulation, the disabled person is defined as "those whose body function loss is documented in a Medical Board report to be at least 40% among the people who have difficulty in adapting to the social life and meeting their daily needs due to the losses of physical, mental, spiritual, sensual and social capabilities at various levels due to any reason at birth or later on and those who need protection, care, rehabilitation, counseling and support services� (art. 2/I, e).

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The regulation adopts two different approaches which are different from the legal arrangements following that the employer will find the employees they have to hire through employment institution.

The first of these is the obligation to inform the institution if a disabled person is recruited without the mediation of the institution by the private sector employer within maximum 15 days following the start of the work and register. Otherwise, it is stated that this worker will not be considered as a disable person (art. 13/II). It is appropriate since it gives the employer the freedom to choose the contract, while the disabled quota limits the freedom of contract.

Notification and registration obligation aim at the correct follow up of the employer quotas and update of institutions’ records (Engin, 2009: 19).

However, it is hard to say that the other approach of this regulation is appropriate. According to the regulation, if the open position is not filled by choosing from the disabled job seekers who are introduced by the institution or registered at the institution portal, employers have to find the disabled worker on their own (art. 15/II). Regulation imposes the obligation of the institution which is the sole responsible in providing the disabled workers to the employer which created an impact on the contractual freedom contrary to the first approach. According to the principle of legality, the constitutional freedom may be restricted only by law.

Therefore, while contract freedom is limited only by law, it is not consistent with law to bring in such an arrangement with this regulation (Engin, 2009: 19).

If the employer does not employ a disabled worker in the quota, there is no legal sanction mentioned in the labor law. However, Article 101 of the labor law imposes an administrative fine in that case. The fine in question is high in terms of amount and is intended as a deterrent 26. Accordingly, for each disabled person who is not employed, the employer has to pay 2.095 Turkish Liras as administrative penalty per month. When it is taken into consideration that the gross minimum wage for the same period is 1, 7273.50 TL and the quota of disabled workers are paid the minimum wage, this amount is a deterrent. However, employers who wish to avoid this penalty in practice show the disabled as insured and pay them the minimum wage and do not request or even refuse the active work of these

26

For the opinion considering the increase of the administrative penalties by the lawmakers as a positive development, see UĹ&#x;an, 2003: para. 150.

49

individuals. As a result, this only evidences that the intended results of the increased penalty fines have not in fact been realised.

The penalties to be charged in accordance with this article are used in the projects such as support technologies that will ensure the employment of the disabled, the recruitment of the disabled, orientation to their work and workplace and such projects.

The issues pertaining to the use of the collected fine are decided by a commission consisting of one representative from the Ministry of Labor and Social Security General Directorate of labor, the General Directorate of occupational health and safety, the Ministry of family and social policies the General Directorate for the services for the disabled and the elderly, the Ministry of Justice General Directorate of Prisons as well as top organizations which represent the highest numbers of workers and employers and the top organization that represent the highest number of the disabled people under the coordination of the Turkish employment institution. The operation procedures and principles of the Commission regulated with the regulation are issued by the Minister of Labour and Social Security. The regulation in question is the regulation on the Commission authorized to use administrative penalties collected from the employers who do not employ the disabled and ex-convicts. 27

With this Regulation, the Turkey Business Council has further paved the way for social integration with the inclusion of the disabled in work life; disabled individuals can be entrepreneurs and employers. Administrative fines collected from employees contravening the disability quota will be used to aid the employment of the disabled. According to the said regulation, a monetary support of up to 36,000 TL will be made to the disabled to establish their own businesses.28This regulation also supports projects relating to support technology allowing the disabled to find employment; projects enabling the placement of the disabled into employment and adapting to the work and business; projects on vocational training and rehabilitation increasing the employability of the disabled. According to the application guidelines issued by the Turkey Business Association on the subject, both the disabled themselves or legal entities (central and local agencies, including public institutions, civil

27

RG 09.01.2014, 28877.

A maximum of 2,000 TL to support establishment operations; a maximum of 4,000 TL to support operating costs; up to 30,000 TL for establishment support.

28

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society organizations, private sector businesses, universities, etc.) 29 may make project applications. What is meant by 'disabled' here is at least a 40% loss in the ability to work due to various degrees of loss of physical, mental, emotional and social skills, and are able to work as documented by "Health Committee Reports for the Disabled". The subject project support is significant in allowing the disabled to take a more active and efficient part in work life. However, the condition, as stipulated by projects aiding the disabled to establish their own businesses, that the established business continues to operate for at least two years after establishment - or monetary support made by the organisations will be recovered with legal interest - is likely to create problematic results. In our opinion, monetary support for disabled entrepreneurs alone is not enough, the continued support of the Turkey Business Association is necessary in the application of the project.

ii.

The obligation to re-recruit the worker whose disability is eliminated.

Another issue arranged under the obligation to employ the disabled apart from the disabled quota in the article 30 of the labor law, is the obligation to recruit the workers whose disability is eliminated in the old work places by their employers. The employer is obliged to recruit these to their old positions or if any in similar position, if there is not, by favoring that person to the other people for a future position (f. 5).

The doctrine regarding how to determine the elimination of the disability is controversial, because in the law on social insurances and general health insurance no. 5510, disability is arranged as at least 60% loss of the work force or income power in the profession. According to the provision of the article 30/V of the labor law, looking for the conditions in the law no.

5510 in order for the obligation to make a new employment contract with the worker whose disability is eliminated does not comply with the purpose of the provision which aims at the protection of the workers and limits the implementation area of the article (Ekonomi, 1987: 104, dn. 124; Centel, 1994: 111; Keser, 2004: 43; S端zek, 2013: 311). Therefore, while implementing the provision of the article 30/V of the labor law, minimum 60% loss should not be searched in the workforce or the ability to earn in that profession for the emergence of the disability and the workers should not be expected to fully gain his working ability for the elimination of the disability. In other words, it should be considered enough when the 29

It is clear that legal entities cannot create projects on the disabled establishing their own businesses.

51

disability which makes the person leave the work is eliminated in a way that would not prevent him from working in the workplace (Tunçomağ ve Centel, 2013: 87-88; Demir, 1999: 216; Mollamahmutoğlu, 2008: 411; Caniklioğlu, 2002: 69-72; Süzek, 2014: 311).

If the employer does not recruit the former employee whose disability is eliminated and requests to be employed, he is to pay a compensation of a salary of six months to the former employee who requested reemployment. (f. 5/c. last).

While Article 101 of the Labor Law foresees administrative penalty for those who do not employ the disabled, the employers and employer deputies who do not implement their obligation to make employment contract with the workers whose disability is eliminated are not obliged to pay any administrative penalty.

b. Protected workplace

i.

Generally

The protected workplace practice for the disabled who are difficult to be incorporated into the labor market due to their disability found its legal basis in the Turkish law with the law on the disabled dated 2005 no. 5378.

Arrangements of protected workplace targeted not only a workplace which aims at production and profitability, but also a working environment aimed at psychosocial and vocational rehabilitation (Seyyar, N/A). However, it is difficult to say that the provision of the law in question and the regulation based on it have a serious implementation 30. In fact, on the contrary to the target, the protection remained limited to a theoretical context.

Therefore, there have been important changes in the legislation about the subject. The new regulation 31 issued for this purpose defined the protected work place as "the workplace supported technically and financially by the state and of which working environment is specially arranged in order to provide employment for the mentally or psychologically 30

For the criticisms on the doctrine see Alpagut, 2006: 35-36; Aktekin, 2010: 153; Engin, 2009: 26; Makas, 2011: 13.

31 Regulation on the Protected Workplaces, RG 26.11.2013, 28833.

52

disabled individuals who have difficulty in joining the labor market� (art. 3/I, ç). While the function of creating employment is taken as basis, only the protection regarding the mental or psychological disabled individuals are mentioned.

Then, the law dated 6.2.2014 made important amendments and innovations 32 regarding the protected workplace and foresaw financial support to encourage the practice.

ii.

The conditions to acquire the protected workplace status

Acquiring the status of protected workplace is contingent on strict conditions (art. 4). The first is to be a workplace which is registered to the Turkish labor institution and include at least eight individuals who are at least 40% mentally or psychologically disabled and have completed 15 years of age. The arrangements in question ended employment creation function of the protected workplaces for the disabled except for the mentally and psychologically disabled.

In order to acquire a protected workplace, the employer should submit his application and some written documents in the regulation to the provincial Directorate of Family and Social policies.

There is a condition that the number of the disabled individuals to work in the workplace should be at least 75% of the total number of workers. Workers who are employed with a limited or unlimited time period employment contracts are counted in determining this rate.

The workers of the partial employment contracts are converted to full-time workers by considering their working time. While calculating the rates, the fractions up to half are not considered, and those which are half or more are converted into full.

It seems difficult for individuals with mental or emotional disabilities to mesh with those without disabilities or, to phrase it more accurately, with those who do not have mental or emotional disabilities, at a business satisfying these conditions. In this case, even if a business comprised of solely, or to a large extent, of disabled individuals of a disability group includes these individuals to the working life, it cannot provide for the social

32

Law no. 6518, RG 19.02.2014, 28918.

53

implications. For this reason, protected businesses should be approached with caution as they support social exclusion.

Those workplaces which are deemed appropriate as a result of the assessment of the Commission among the applicants are issued a document of protected workplace status by the governor.

iii.

Incentives for protected workplaces.

The practice of protected workplace is dependent on the application of the employer, and therefore, their will. The employer is expected to target production and profitability as well as psychosocial and vocational rehabilitation. On the other hand, meeting the conditions to acquire the protected workplace state is not easy. It is difficult to claim that a workplace that can meet these conditions can realize its purpose of production and profitability. Therefore, the protected workplaces had to be encouraged, thus, the legislation included arrangements regarding financial incentives for this purpose.

The first among these is the premium incentive to the employer. The premium in question is not limited to the protected workplaces; therefore, the explanations shall be included under the titles below.

The other incentives regarding protected the workplace were foreseen by many amendments in the law dated 06.02.2014 in the labor law, income tax law and unemployment insurance law.

The salaries given by the employers to the mentally or psychologically disabled employees in the protected workplaces on time and of which the legal obligations were met on time and completely shall be partially provided to the employer by the Treasury (Labor Law add. art.

1).

The annual gross amount of the disabled workers employed in the protected workplace shall be deducted from the income to be stated in the income tax statement (The Income Tax Law art. 89/XIV).

54

The Unemployment Insurance employer share of the mentally or psychologically disabled that are difficult to be incorporated into the labour market and are employed in the protected workplaces shall be met by the Treasury (The Unemployment Insurance art. 49/I).

Despite all these supports, the practices regarding the workplace acquiring the protected workplace remain limited and the healthy data regarding the issue cannot be reached. It means that despite all these conditions, giving only premium incentive has not been sufficient to trigger a desire in the employers.

It should be noted that the criticism made on the doctrine in the first year when the arrangement of protected workplace entered the Turkish law maintains its appropriateness and validity: "The protected employment should not be evaluated as a final purpose, but an intermediary in the transition to employment and this purpose should be realized by training the disabled in the needed area" (Alpagut, 2006: 36).

c. Premium incentives According to Article 30th of the Labor Law, all of the employer shares from all of the insurance premiums calculated over the income lower level for the premium for the disabled insured employed in the private sector as well as the disabled insured employed in the protected workplaces specified in the article 14 of the law no. 5378 as well as the employer shares of the insurance premiums calculated over the lower level of income-based for the premium for each disabled for the employers who employ more workers than the required in the quota and employ the disabled although do not have the obligation are completely met by the Treasury.

Increasing the premium incentive which was 50% with the law 33 dated 6.2.2014 for the employers who employ more disabled than the required and meeting the entire employer share by the Treasury has been an appropriate change 34.

33

The Law no. 6518 on the Amendments on the Decree of the Ministry of Family and Social Policies Organization and Duties as well as some Laws and Decrees, RG 19.02.2014, 28918.

34 For the opinion on the doctrine, see CaniklioÄ&#x;lu, 2008: 170.

55

In order to benefit from the disabled insurance incentive provision, that part that should be paid by the insured for the insurance premiums accrued due to all monthly premiums and service documents issued for a month as well as the employer's share which is not met by the Treasury should be completely paid (CaniklioÄ&#x;lu, 2011: 184). Therefore, although the difference among the incentive rates regarding whether the disable worker is in the quota or not or is under the protected workplace scope with the amendment made in 2014 and the entire employer shears have been decided to be paid by the Treasury, it is not possible for the employer to benefit from the disabled insured incentive if the insured share after insurance premiums accrued due to the other annual premiums and service documents as well as the entire employer shares which was not met by the Treasury are not fully paid.

According to this paragraph, if the employers pay the premium he has to pay late, the overdue interest resulting from the delay of the payment to be made to the Social Security Institution by the Treasury is collected from the employer. The amount of premium met by the Treasury is not considered as an element of expense or cost in the income and corporate tax applications (f. 6).

3. Disability based discrimination a. Generally The main discrimination that the disabled individuals face is the practices they encounter in the work life. The definition regarding the disability based discrimination in the Turkish constitutional law was given above 35. The issue was arranged also at the law level. The labor law no. 4857

36

and the law on the disability no. 5378 and the Turkish criminal law no.

5237 37 include arrangements regarding the disability based discrimination about the business relations. Although the arrangements should be implemented together, there are approach differences among the laws. The changes expressed as a requirement of the EU membership process 38have been implemented and as a result, regulations adhering to the EU aquis on the prohibition of discrimination, and therefore, disability-based discrimination, have been 35

See Chapter 2, I, 2.

RG 10 June 2003, 25134.

37 RG 12 October 2004, 25611.

38 For example, General Preamble of the Labour Law: "in the EU accession process, the self-binding norms in EU countries which are not yet in Turkish law must be introduced to Turkish Labour law. This requirement means amending in thisaccession process, together with, in particular the labour law, several other statutes."

36

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included. Below, the legal arrangements shall be categorized according to the enforcement to be implemented.

b. Legal enforcement

i.

Disability based discrimination according to the labor law no. 4857

Although the title of the article 5th of the labor law is “the principle of equal treatment”, the prohibition of discrimination was especially regulated in the text of the article. Specifying disability as a basis for discrimination occurred with an amendment law 39 on 6.2.2014 no.

6518 40.

According to the labor law, if the prohibition of disability based discrimination is violated in the business relations or in its termination, it is stated that a compensation up to four months of salary which is called as the discrimination compensation shall be concluded and the disabled worker can request his deprived rights (art. 5/VI). The word salary here means the net salary and does not include the additional payments such as bonuses, premiums and fringe benefits (Şahlanan, 2003: 35-36; Çelik, Caniklioğlu and Canbolat, 2014: 244; Caniklioğlu and Canbolat, 2004:230; Süzek, 2014: 476). In case of disability based discrimination, according to the labor law provision article 5 /VII, the burden of proof belongs to the worker. However, if the worker can set a situation which strongly show the possibility of a violation, then employer is obliged to prove the non-existence of such a violation (m. 5/VII, last sentence). .

Apart from that, the invalidity of the process that constitutes discrimination as well as material and spiritual compensation might come to the scene, and the process which creates the current discrimination might give the worker the right to terminate the employment contract for justified reasons (Yıldız, 2008a: 375 vd.; 2008b: 86).

39

RG 19 February 2014, 28918.

The opinion regarding that the discrimination reasons in the arangement made in the doctrine before the amendment through analogies and therefore, the “disability” based discrimination is prohibited with this form of the arrangement; however, the “disability” basis should be added to the article see. Alpagut, 2005: 155; Yıldız, 2008a: 146; 2008b: 82; Ünal, 2012: 179.

40

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If the termination of the employer of the employment contract of the worker is due to disability based discrimination, the legal consequences will be different depending on whether the worker is under any insurance, and the termination will constitute ill-intentioned or unjustified termination (Yıldız, 2008b: 86). ii.

Disability based discrimination according to the law on disabilities no.

5378

The definition of the disability based discrimination at legal level occurred as a result of the amendment made on the law on the disabilities no. 5378 with the law dated 6.2.2014 no.

6518. Accordingly, disability based discrimination is “all kinds of distinction, exclusion or limitation performed based on the disability against using the human rights and fundamental freedoms completely and under the equal conditions with others or benefiting from the in political, economic, social, cultural, civil or any other domains.”

With the amendments in question, all kinds of discrimination based disability including direct and indirect discrimination are eliminated (art. 4/A/I), and it is stated that the necessary precautions will be taken in order to make the reasonable arrangements for eliminating discrimination against disabilities (art. 4/A/II). In addition, it is clearly stated in the law that the special precautions to be taken to ensure the disabled to benefit from rights and freedoms shall not be considered as discrimination (art. 4/A/III).

The regulation has been defined as such: "Reasonable and appropriate measures, which are not disproportionate or bring excess burden, but which allow the disabled to exercise their human rights and fundamental freedoms fully, equally to other individuals" (Art 3/I, j).

Precautions must be taken to eliminate obstacles encountered by the disabled in employment or whilst seeking employment, and it is mandatory for appropriate adjustments to be made at their place of work by institutions and organisations who have duties, authority, and responsibility in this regard (m. 14/IV).

The amendment defined the direct and indirect discrimination for the first time in our legislation. According to this, direct discrimination is “all kinds of different treatments which prevent, limit and complicate equal benefiting the rights and freedoms of the disabled when compared to those comparable and are based on the disability based discrimination” (art.

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3/I, a). Indirect discrimination is “to put the disabled in a disadvantageous position which cannot be objectively justified in terms of his benefiting from the rights and freedoms connected with the disability based discrimination as a result of all actions, processes and practices which do not appear as discriminative.” (art. 3/I, b).

Article 14 of the law on disabilities no. 5378 has prohibited discrimination based on disabilities starting from the process of recruitment (Alpagut, 2005: 155; Yıldız, 2008a: 146; Ünal, 2012: 179). In addition, it is regulated that these people cannot be treated differently from the others due to their disabilities in any way that would result against the favor of the disabled (f. III). However, it should be noted that the law mentioned prohibition of disability based discrimination, yet there has been no legal enforcement in case of its violation. This gap in the article by the doctrine is claimed to be possibly recovered by the implementation of the arrangement regarding the discrimination compensation at an amount of up to four months of salary prescribed in the article 5 of the labor law (Alpagut, 2005: 155; Doğan Yenisey, 2006: 68; Yıldız, 2008a: 146; Engin, 2009: 24; Ünal, 2012: 179).

In the provision of article 14/III of the law number 5378, some institutions and organizations and employers have been imposed with obligations regarding disability based discrimination.

The scope of the obligation is to take the precautions in the employment processes regarding the elimination of the obstacles and difficulties that may be encountered by the disabled who work or apply for a job and to make the reasonable arrangements in the workplaces of the disabled.

The recruitment regulation imposed the obligation to prepare the workplaces ensuring the comfortable work of the disabled and the appropriateness of the job to the disabled worker, to take the necessary precautions for their health, and to provide the necessary tools and equipment for the to the employers (art. 18/I). In addition, it is stated that the start and ending of the work hours can be adjusted to the situation of the disabled if it is possible (art. 18/II).

According to the survey on the problems and expectations of the disabled of the Turkish institution of statistics in 2010, it is seen that the 55.7% of the disabled want to work in the positions which do not include the heavy physical work and effort, 33.3% want to use shorter

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breaks in the work hours due to their health problems, 27.6% want to work at part time jobs and 10.7% expect to use special assistance and equipment while performing their duty 41.

The lawmakers considered that special situation of the workers who have a disabled child which is a different reflection of the request in question. The amendment in the law in April 2015 introduced the obligation to grant paid leave up to 10 days altogether or partially within a year based on a disability report of the child being treated for disability or chronic illness at a minimum rate of 70% as long as it is used only by one of the working parents thanks to the article added to the labor law 42. We believe that there is no obstacles against granting more paid leave rights if required. In addition, it is appropriate to bring in a minimum obligation with the law.

The fact that these arrangements predicted obligations for the employers along with the related institutions and organizations for eliminating the obstacles encountered by the disabled in their workplaces have been considered as a serious step taken for the material legal equality by going beyond the discrimination prohibition within the harmonization process to the EU in terms of the doctrine (Doğan Yenisey, 2006: 73). However, we should note that the practice is not as satisfactory.

c. Penal and administrative enforcement In case of the violation of the discrimination prohibition, there are penal and administrative enforcement along with the legal and administrative enforcement.

The type of crime titled as “hatred and discrimination” regulated in article 122 of the Turkish criminal law was amended in the law 43 dated 2.3.2014 and no. 6529. The previous arrangement was criticized for not being effective and the enforcement was not determined (Yenidünya, 2006: 115). According to the new arrangement, a person who prevents ‘the recruitment of a person’ due to the hatred resulting from disability shall be punished with a prison punishment starting from one year up to three years. The deterrence of the See, TÜİK, The Survey on the Problems and Expectations of the Disabled, 2010,The Distribution of Arrangements/Working Conditions Needed by the Working Registered Disabled People According to the Disability Type (http://www.tuik.gov.tr/PreTablo.do?alt_id=1017, Accessed on: 06.04.2015).

42 The Law no. 6645 on the Amendment of Occupational Health and Safety and some Laws and Decrees, RG 23.04.2015, 29335.

43 The Law on the Amendment of Various Laws for the Improvement of the Fundamental Rights and Freedoms, RG 13.03.2014, 28940.

41

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enforcement increased since the punishment of the crime was increased with the amendment, yet it is hard to defend that its practice is more effective. On the contrary, by bringing a new arrangement stating that this type of crime can be committed with ‘the hatred motive’ which is hard to prove, the application area of the article was largely limited and even the article became inapplicable (Pamuk, 2015: 138). We should note that intention is not seeked or the will of the perpetrator is not considered in the emergence of discrimination in terms of labor law. This situation results in considering many events which are qualified as the disability based discrimination in the business relations as a crime.

We should note that since the arrangement in question does not regulate the continuation or termination of the work, the criminal enforcement is only limited with recruitment and the continuation and termination of the work not as subject of criminal responsibility due to the narrow interpretation of the criminal provisions and the principle of legality (Alpagut, 2006: 155; Engin, 2009: 25; Ăœnal, 2012: 180).

In case of the violation of the principles and obligations in article 5 of the labor law, according to the article 99 of the labor law, the employer and employer's deputy has to pay an administrative penalty. Therefore, the violation of the provisions of the prohibition of discrimination is considered as fault. According to this, in the continuation of or termination of the business relation, the violation of the prohibition of disability based discrimination is a fault and is subject to administrative enforcement, not criminal enforcement.

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III. EMPLOYMENT OF THE DISABLED UNDER THE ADMINISTRATIVE LAW (Assoc. Prof. N. Münci ÇAKMAK) There have been amendments regarding the employment of the disabled as civil servants with various laws, regulations and communiqués including the 1982 Constitution. The arrangements have been shaped in two dimensions in general. First are the arrangements allowing the disabled to acquire rights at equal status with the non-disabled without exposure to any discrimination. Second are the regulations including the special rights granted to the disabled by the legislation due to their disability.

1. The 1982 Constitution and the Rights of the Disabled for Public Employment According to Article 49th of the Constitution:

“Everyone has the right and duty to work. The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labour, to promote labour, to create suitable economic conditions for prevention of unemployment and to secure labour peace.”

This article regulates the right to work in a general way. It is not an arrangement directly related to the disabled. The disabled take advantage of the rights that are brought within the words of this article thanks to the word "everyone". The provision of the article is comprehensive regardless of the disabled/non-disabled nature.

According to Article 50 of the Constitution which regulates the working conditions and right to rest:

“No one shall be required to perform work unsuited to his/her age, sex, and capacity.

Minors, women, and physically and mentally disabled persons, shall enjoy special protection with regard to working conditions.”

This article draws the general framework of both the public and private sectors in terms of working conditions. The working condition criterion in the first sentence that applies to

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everyone was identified as age, gender and power. In the second sentence, regulations have been made on the persons in need of protection in particular in terms of working conditions.

As it can be seen from the content of Article, the disabled are included in the "physically and mentally deficient" group. This situation shows us that the disabled are regarded as deficient from physical and mental aspects. We believe it would be more correct to say "physically and mentally different" or in short "the disabled" in the arrangement instead of the word and criteria "incompetence". It does not sound pleasant to qualify the disabled as always inadequate in terms of everything in working conditions. It is right that the disabled cannot work at some working conditions, yet it would be a more elegant way of expression to qualify them as a special case arising from differences instead of disabilities.

According to the Article 70 of the Constitution regulating the right to enter public service:

“Every Turk has the right to enter public service. No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service.”

Two points are emphasized in this article. The first of all is the recognition of the right to enter public service, and the latter is that on distinction can be made in the recruitment. Here the word “Turkish” is selected instead of the word “everyone” to deny the right to enter public service for the foreigners. Therefore, the word “Turkish” in the article could be interpreted as anyone who is a Turkish citizen. Then, regarding our issue, all Turkish citizens with disabilities have the right to enter public services.

The second sentence which prohibits discrimination on the recruitment is a very appropriate and timely arrangement. It foresees only a distinction that can be made only on the requirements of the task. We cannot criticize this article as discrimination, because the aim is not to subject the disabled or others to discrimination. It must be admitted that most tasks / jobs require certain qualifications. It is normal to prefer certain people with specific qualities for a specific task. What is important for us is the non-discrimination based on disabilities when a disabled and non-disabled with the same qualities apply for the same job. This discrimination is prevented by the principle of equality stipulated by the Constitution and other legislation.

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2. The Civil Servants Law No. 657 and the Entrance of the Disabled to Civil Service According to Article 53 of the Civil Servants Law No. 657:

"The institutions must employ 3% disabled staff of the staff they employ in accordance with this Act. In the calculation of 3%, the total number of full staff of the concerned institutions or organizations (excluding international organizations) is taken into account.

The exams for people with disabilities are performed centrally by preparing the exam questions and ensure their accessibility based on their disability groups and education status as long as there is disabled quota as separate from the exam for those to be appointed as civil servants for the first time.

State Personnel Department is responsible for the follow-up and supervision of the fulfillment of the obligation to employ disabled staff in the civil service. The public institutions and organizations having disabled quota shall notify the State Personnel Department regarding their demand for the disabled to be recruited next year until the end of October of each year. State Personnel Department can make placements on the disabled quota upon the notification of the institutions.

“The regulation to be prepared by the State Personnel Department after taking the opinion of the Administration for Disabled People regulate the conditions for the disabled to be civil servants, the central examinations and placements, the placement by lottery procedure according to education status and disability groups, which aids will be provided by the institutions in the execution of the duties of the disabled, procedures and principles regarding the notification of statistical data by public institutions and organizations for the disabled staffing and other aspects. "

Law on Civil Servants, by introducing a mandatory provision holds it compulsory for public institutions to have at least 3% of employees subject to the Civil Servants Law No. 657 as the disabled. The Article made an appropriate arrangement and makes it easier for the disabled to be civil servants. However, it is considered that the rate of disability in society is 12.29% (Turkey Statistical Institute data for 2002), 3% remains at a slightly lower level. This rate of

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12.29% is valid for all age groups, and in fact, the age to enter the civil servant positions covers the people aged mostly 20-29, while the number of disabled persons in this age group is 7.30 % (Turkey Statistical Institute 2002 data). The decline of the rate is a positive situation for people with disabilities but still an increase of 3% will provide more convenience in terms of the disabled becoming civil servants.

The recruitment of the disabled into civil service is performed by making a separate central exam center for the disabled as regulated in the following paragraphs. However, this practice is not mandatory. It is an opportunity granted to the disabled. A disabled person can apply any exam carried out for the recruitment of civil servants or contracted personnel to the public institutions and organizations just as any non-disabled candidate. Therefore, any willing disabled can take up the KPSS (Public Personnel Selection Examination) which is open to anyone and is not specific for the disabled. The EKPSS exam for the disabled is to turn disadvantaged situation of the people with disabilities to their advantage if they want. If the disability of the person does not hinder him from performing the examinations, he may enter the regular exams. If he wants to pass a test process in a more comfortable way or if the normal test conditions are to force him because of his disability, then the disabled candidate may choose EKPSS exam.

3. Disabled Public Personnel Selection Examination (EKPSS) for the Disabled and the Recruitment of the Disabled to the Office

The exam procedure of the EKPSS exam made for the disabled is regulated in detail in the provisions “Regulation on Disabled Public Personnel Selection Examination and Recruitment to the State Office". Regulation holds the principles and procedures relating to other matters related to disabled civil servant recruitment, provision of statistical information, monitor and control of disabled civil servants, centrally held Disabled Public Personnel Selection Examination, lottery and the placement process (Article 1 / (1)).

Pursuant to article 13 / (1st) of the Regulation, "the placement of the disabled candidates to the civil servant positions is established with EKPSS results and placement results of the lottery" are used.

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EKPSS and lottery methods are defined in Article 4th of the Regulation. According to this:

“d) Disabled Public Personnel Selection Examination (EKPSS): “The centralized exam results of which are used in the recruitment of the disabled with secondary education, undergraduate and graduate degrees to the labor staff of public institutions and organizations according to their disability groups”

e) Lottery: “The method used in the placement of the disabled primary, secondary, and special education center or business administration school graduates to civil servant positions according to their preferences” In accordance with the article 8 / (2nd) of the Regulation, the questions to be asked to the disabled in the EKPSS exam are prepared “to measure the knowledge, skills and capabilities of the disabled depending on their learning and perception level as well as language development and verbal communication difficulties based on their disability groups.

Moreover, the disabled candidates are provided with opportunities regarding the examination conditions. EKPSS carried out in the environments suitable for the disability groups and accessibility of the candidates. The requesting candidates are provided with proctors who are there to read and/or mark in accordance with the disability group (Article 8/4).

This law considers the quota spared for the disabled while making arrangements regarding the recruitment of disabled as civil servants. In such cases, the question that might arise in your mind is how the disabled might become civil servants if there is no disabled quota in the public institution or organization. The regulations regarding this issue are in the third paragraph of the article 10th of the regulation. In accordance with the provision of the article, if there are no suitable positions to recruit the disabled, the other existing positions are modified in accordance with the service requirements and general provisions to provide the necessary position. The units in which the disabled persons are being recruited are determined by the public institution or organization considering their disabilities. Obviously in case there is no position for the disabled, it is obligatory to turn other positions to the disabled position.

Another important issue is the problems of accessibility civil servants might encounter in their workplaces. The article 16 of the regulation deals with arrangement of the workplaces in

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accordance with the working conditions of the disabled. In accordance with the article, the public institutions and organizations are obliged to make the working places and their attachments in a suitable condition for the accessibility of the disabled, to take the necessary precautions facilitating the accessibility of the disabled and to provide the assisting and supportive tools and equipment required in accordance with the disabled in order for them to perform their duties. Arrangements stating that the disabled cannot be employed in the works that increase their disability or bring additional obstacles aim at eliminating the problems regarding accessibility and working conditions in the workplaces.

4. Various provisions which facilitate the disabled regarding civil service The law on civil servants no. 657 includes various arrangements which facilitate the work life of the disabled. These can be classified as appointment leaves, working hours and facilitations regarding the resumption of work. The law on civil servants no. 657 as well as the other laws and regulations provide opportunities and rights for the disabled in our legal system. In some cases, depending on the administrative situation, the administrative decision might carry out advantageous practices for the disabled. Within the discretion left to the administrative authorities for some issues might arise carious facilitations.

a. The privilege provided with the right to appointment The law civil servants no. 657 Article 72nd:

“According to the report to be issued in accordance with the related legislation, arrangements are made to meet the requests to change the locations of the civil servants who are themselves disabled or whose spouse or the family members under his responsibility who have first degree blood lineage relationship are disabled.

If the person to be appointed is disabled, this article provides a direct advantage for him. If the disabled person is his spouse or his relative from first degree this article facilitates the appointment process of the person and provides an indirect benefit for the disabled. It is appropriate that the article is prepared comprehensively, because most of the time the arrangements regarding directly the disabled are not sufficient. Some disabled people might

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need their spouses or relatives. This situation is not about neediness. What is aimed in the article is to facilitate the life.

The law on civil servants no. 657 additional article 39th:

“If the special education assessment council documents that the disabled spouses, children and siblings of the civil servants reported by the Medical Board report at any level in which they cannot lead their lives without the help or care of somebody else shall receive education and training in the official or private education institutions out of the location of the duty, upon the request of the relevant person, the civil servant is appointed to a suitable empty position which is close by to the province or district where the education institution is located.”

The article guarantees the advantage to be provided to the disabled in terms of his continuation to special education. If the civil servant has a disabled spouse, child or sibling, he can request his appointment to a location having a special education institution to ensure special education to be granted to these people. That article is an appropriate arrangement and aims at not depriving the disabled who need special education from education, and provides the right to appointment to the spouses, parents or siblings to ensure this.

b. The rights regarding the working hours

The law on civil servants no. 657 article 100:

“The start and ending hours of the work and lunch break are determined by the Council of Ministers under request of the State Personnel Directorate in the center based on the qualities of the regions and the services, and by the mayors in the provinces.”

“However, for the disabled, the start and ending hours of the work as well as the lunch break might be determined in a different way by the top executive in the center and by the chief officers in the countryside considering the disability, the requirements of the task and the conditions of climate and transport.”

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This article foresees that their working hours can be specially adjusted to disabled civil servants. It is an appropriate arrangement and provides many opportunities especially in terms of the climate. The goal of determining working hours is to provide general order and discipline. The flexibility in the working hours in some cases does not cause hindrance of the work and even provides a positive impact by making the person comfortable since his concerns to be late for work is eliminated. It is possible for a disabled civil servant whoso house is located far to come to work and leave the work later than the other employees. It might be possible to change their working hours for a few days, weeks or months for the disabled due to intense snow and rain fall.

The law on civil servants no. 657 article 101:

“The disabled civil servants are not assigned with the duty of night shift or night watch out of their request.”

This article brings some arrangements regarding night work. It forces that the disabled civil servant cannot be employed in the night shift or night watch out of his own world.

c. Special arrangement about leaves

Law on civil servants no. 657 Article 104/ E:

“If the disabled or chronically ill child (at the rate of at least 70 percent) of a civil servant gets sick (if that child is married, his spouse should be at least 70 percent disabled as well), based on the medical report and as long as used by only one of the parents, a leave of up to 10 day can be granted within a year partially or all together.”

The arrangement guarantees the right to leave for 10 days to be granted in case the people who so relatives are disabled or chronically ill.

d. The right to resume the work Law on civil servants no 657 article 189th:

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“Among the civil servants who receive disability salary, those whose workforce is expected to be increased can be subjected to their work in order to ensure them keep working in their profession in their old position or in a new category.�

The article makes it possible for the disabled civil servants who had to quit their duty by receiving disability salary to start working again. It is an appropriate arrangement and provides a new opportunity for the disabled who finds the power to work again.

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CHAPTER FOUR THE VIOLATION OF THE RIGHT TO WORK OF THE DISABLED (Advt. Figen Erbek) The employment of the disabled individuals is possible by ensuring their effective and active participation in the social life. In order to ensure active participation in social life, the necessary precautions should be taken for the disabled to enable them use their education, health, cultural and social rights. Moreover, all the relevant people as well as the politicians should put the needs of our disabled citizens as the priority subjects on the agenda in accordance with the principle of positive discrimination while determining their policies in the service sector.

The reasons for unemployment and the problems arising in the practical life shall be evaluated in terms of the education rights and accessibility which are closely related to the right to work. Later on, and the difficulties encountered in the work places of the disabled workers will be put forward.

I.

THE PROBLEM OF EDUCATION

The right to work is closely related to the right of education. As stated by the statistical data above 44, it is difficult to defend that the disabled individuals have obtained the insurance required for their education right. In this situation, uneducated or less educated disabled individuals cannot find a place in the work life.

As a result of the failure to produce healthy and effective policies on certain issues regarding the disabled in the education area and the discriminative attitudes of some people who are authorized in the education units against the disabled individuals, the disabled are deprived of their education right.

The biggest requirement of an individual to develop himself is education. However, the deprivation from this right brings along some other problems.

44

See Chapter 3, II, 1.

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Along with architectural deficiencies in the education institution, the negative perspectives and attitudes of the responsible and authorized people at some institutions against the disabled individuals lead to the alienation of the disabled child and his family especially in the primary school, and most of the time it prevents receiving primary education.

Some school directors sometimes see disabled students as a financial burden or as a demotivating impact for the other children. It is observed that even the educators and especially the directors should be educated to eliminate these prejudices against the disabled.

The relatives of the disabled students have to deal with many problems most of the time without assistance including especially health issues resulting from the disability and also have to struggle against prejudiced directors and have to seek judicial remedies.

When the adult disabled person is left uneducated, he has more difficulty in finding a job, and most importantly he is isolated from the social life.

It is stated that by 2014 there were 22.209 vacancies for teachers, ushers, court clerks, religious preachers, muezzins, mosque caretakers, Quran course teachers, nurses, midwives and health officials which are 15.632 in the Minister of Education, 1.347 in the Minister of Justice, 2.445 in the Minister of Religious Affairs, 1.774 in the Directorate of Turkish Public Hospitals and 1.010 in the Directorate of Turkish Public Health Institution. However, since there were no disabled candidates to be appointed to this position due to their education level, it is stated that these positions might be filled over time in parallel with the increase in the education level of the disabled candidates 45.

However, it is difficult to claim that high education institutions are suitable for the accessibility of the disabled. The disabled are excluded from the universities due to the physical condition there. Although there are commissions of the disable at the universities, the activities of the majority do not go beyond organizing symposiums in the disabled week and the world disabled day instead of providing solutions for the problems related to disabled education. Recently, with the efforts of the academics that are sensitive to the disabled problems and can do empathy, we can say that there are serious movements started in some

45

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Quoted from the written parliementary question of TĂźzel, Abdullah Levent - Ä°stanbul Deputy no. 7/49728.

of the higher education institutions. However, it is not possible for this effort to succeed alone.

In our country where the education system is built for the non-disabled individuals, here is a problem encountered by a disabled individual who earned the right to receive education at the University:

1. Enver Şahin - Fırat University Case Enver Şahin became paralyzed after a traffic accident in 2005 and had to pause his studies for 2 years. Later on, when he wanted to continue his education, he requested the problem of accessibility to be solved as the physical condition of the university building was not suitable.

However, the faculty in which 3,000 students study stated through the related administration that it is not possible to change the architectural projects of the classrooms and laboratory building and it is not possible to build the arrangements such as ramps requested at the entrance level of the building and the applicant has to actively participate in the applications which consist of applied workshops in majority, and there are difficulties in ensuring his participation to the application due to the missing arrangements, however, the faculty shall help as long as its capabilities allow.

Although the university thought a solution would be provided by this reply, when it is understood that the problem could not be eliminated in the inspection carried out shortly before the education period, this time a written warning was sent. As a response to the letter, the administration sent the following letter:

“It is obvious that making the arrangements takes some time within their public financial discipline. Building in which the theoretical classes are given has three stories, and the problems encountered will be solved by assigning an assisting personnel.”

As seen in this problem, the failure to build the ramp which is almost of no cost and to see the education of the disabled person not as an obligation but as the cost is a problem of the

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mentality. Despite the legal arrangements, it is seen that it will take longer to solve the problem unless the practitioners change their mentality.

The file suit against the institution due to depriving Enver Şahin from his right to education was concluded in favor of the disabled.

The decision of the Elazığ local court is as follows: “In the suit filed due to the absence of disabled people in the building where the individual receives education and yet his rights to education were prevented hindered, no illegality was found in the responses received. Moreover, the material compensation request was rejected by the court on the grounds that when the individual graduates he will make an income and his active stated income has not started and is dependent on assumptions” 46.

As observed in the decision, primarily the attitudes of the responsible / authorized people in the education institutions as well as the architecture of obstacles limit the participation of the disabled individual to the social life in an indirect way, then his education right is violated and his employment is prevented. (This case exhausted all the domestic remedies and was sent to the ECHR and has not been concluded yet.)

2. Koray Arslan - Istanbul Technical University Case A similar situation was experienced when Koray Arslan, the student of the Istanbul Technical University was paralyzed due to an accident while he was doing his internship. The Rectorate of the University as well as the Commission of the Deanship and Internship determined the needs of the student and rearranged the faculty of construction. Positive examples are encountered even though they are rare 47.

Both examples show that the training of the educators responsible and authorized in the education institutions regarding the disabled has a vital importance for the disabled Elazığ 1st Administrative Court, Principle no.2007/2499 and Decision no. 2010/355.

Quoted from Hürriyet Newspaper – Agenda- the article titled “The School Management refused even the toilet of the disabled” by Asım Güneş on 20.08.2007.

46 47

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education. It is obligatory to teach that it is the main tool for ensuring the participation in the social life. Unless the problems regarding education starting from the primary schools are not limited, it will be obviously hard to employ the disabled in the private or public sector.

II.

PHYSICAL ACCESS AND TRANSPORTATION PROBLEMS OF THE DISABLED

One of the biggest obstacles against the active participation of the disabled into the social life and the work life is transport and physical accessibility problem.

On the other hand, we can say that the disabled people do not have the mechanisms that would enable them to develop their consciousness to seek their rights for the solution of their problems and most of the time they do not find the power to fight against the problems they experience due to their disability.

In order to ensure employment, even if the disabled individual seeks legal methods, they face many difficulties when they search their rights.

Along with the primary obstacles which are physical accessibility, the main problem arising against the right to justice is limited by mostly the slow procedures, illiteracy in terms of the disabled law in the judicial authorities and finally poverty. Since the courts are located in the centers in the metropolitan cities, the distance should be considered as an obstacle against the right to access justice. The problem arising from the practitioners and the persons and institutions as well as the weak struggle of the disabled individuals in that sense make it difficult to complain about the authorities who do not fulfill their responsibilities and to perform the available legal arrangements.

Physical accessibility has a vital importance for the disabled individuals. Regarding disabled individuals’ employment, the disabled person has to first consider whether there is a physical access to the workplace and its compliance with the universal standards. Architectural efficiency of the streets, the absence of the standards required for the disabled individuals in the mass transportation vehicles regarding the required equipment depending on the disability type, failure to emphatize the other individuals and drivers who use the public transport in

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terms of the disabled people, the negative perspective and the failure of the disabled individual to participate in the social life all together result in his unemployment.

When the problem of transport is solved, disabled individual has to consider if the architectural situation of the work place / building is appropriate for us, if it has the equipment to meet his needs, whether the task given to him is suitable for his disability and whether he can communicate with the employer and the personnel; because the merciful looks of the people on the disabled individuals start to be irritating over time and finally push the individual away.

The disabled employment is trying to be solved with ‘the quota system’ in the legal arrangements. However, since there is not sufficient inspection regarding whether all workplaces which have to employ disabled people have the universal architectural standards suitable for the employment of the disabled people, the solution became unusable. At this point, the institution that is obliged to provide employment to the disabled individuals should cooperate with the Social Security Institution in terms of providing the number of workers and the local administration for the inspection of the architectural obstacles and should ensure the information flow to solve the problem. Because when the number of workers is found out, the problems shall be solved easier when the relevant professional unions or local administrations operate in terms of the compatibility of the physical conditions at the workplace.

When the physical accessibility and transport are not compatible with the universal standards, it becomes a huge obstacle against disabled individuals benefiting from the rights in an equal manner. In order for contributing to the solution of this problem, drawing the attention of the authorized people and reporting activities carried out for this purpose, the legal process was started in 2002 to make an overpass suitable for the disabled.

1. The Spinal Cord Paralytics Association of Turkey – Istanbul Metropolitan Municipality case (Sirkeci Kemeraltı overpass case) In order for the construction of the Sirkeci Kemeraltı overpass (since it was heavily damaged while a truck was passing under) in a way that can be used by the disabled people, The Spinal Cord Paralytics Association of Turkey made an application and the relevant institution

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decided it to be evaluated in the second tender due to the inadequacy of the financial resources despite the existence of an elevator in the project.

The project and production would result in the loss of rights for the disabled individuals. In the case requesting the cancellation of the rejection of the request, that local court decided that:

“Since their needs should be considered in the important roads and intersections, in the action which require being the procrastination to the second place, there has been no legality in the implementation of the result 48.

The result was finalized. Since the case will law of the local court and the case opened to ensure physical accessibility, it is promising to set a precedent for the legal application for similar purposes.

It was really important for the court to emphasize that the physical accessibility is a requirement for the human rights. And it was one of the first to make such decision.

While the case was continuing, the overpass was completely renovated and no support was requested from the professional chambers such as the architecture and engineering, thus, no solution was produced to ensure the transport of the disabled people. The Istanbul metropolitan municipality which was the defendent added two elevators to both sides of the overpass when the court was about to make the decision.

After the addition of the elevator, the doors of the elevators were locked and the association was notified stating that “the disabled elevator built on the overpass was opened, and the necessary key for the elevator can be provided from the Istanbul Center of the Disabled. At that time, if Istanbul Center of disabled was located in Beşiktaş – Balmumcu while the overpass was located in Sirkeci. Such a response saying that the elevators can be used by providing the key from almost 20 kilometers distance could only be black humor. Because the authorized people thought that the elevator would be only used by the disabled. However, the solution to be produced should have provided accessibility for everyone. Because

48

İstanbul 1st Administrative Court Principle no. 2002/438 Esas, 2003/162 Decision no. 20.02.2003

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accessibility is not a problem specific to disabled individuals. It might be a problem for the elderly, sick, temporarily disabled and pregnant individuals. Therefore, the basic mindset should be to produce solutions of accessibility for everyone.

The problem of transport and physical accessibility are not just the problems for the disabled.

At any time an individual might break his foot and might experience this problem even though temporarily. An elderly individual cannot easily climb long and steep stairs and somebody who is pregnant or carries a baby cart or luggages would like to use the elevator.

However, the practitioners considered the usage of the elevator necessary for the disabled and closed it for the use of other individuals. It results from the absence of scientific studies regarding accessibility problems and their solutions.

Regarding the physical accessibility and universal standards, the local administration could not succeed much after 2004, yet started to increase activities. The fact that we are still discussing the standards of the ramp heights point at where we are right now in terms of the solution of the problem.

2. The Spinal Cord Paralytics Association of Turkey - Istanbul Metropolitan Municipality Light Metro Case In the light metro system working between İstanbul Yenibosna – Aksaray, it was found that there are obstacles limiting the movement of the disabled and the infrastructure is insufficient, therefore, arrangements were requested in accordance with the A-g clause of the article 6 of the law no. 3030, and the defendant administration against this request responded as follows: “...the project on the line regarding the infrastructure and the disabled people are considered to be implemented in the 2003 Investment Program...”.

The local court decided and finalized the following 49: “In accordance with Article 10 of the law no. 2577, this letter of response obviously shows that the qualification regarding the rejection of the request can be subjected to a trial, and the defendant administration did not implement its obligations stipulated by

49

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Istanbul 6th Administrative Court Principle 2003/71 and Decision no. 2004/397 dated to 18.03.2004.

the International Convention, Constitution and laws regarding the maintenance of the individuals with paraplegia of their rights in the social circle, and the action which is about the rejection of the application of the plaintiff is not deemed contrary to the law.”

The obligation to seek legal remedies even in the provision of public transport shows the difficulties of participation of the disabled individuals into the life in our country. The awareness of the judicial bodies giving the two decisions given as examples regarding the importance of the physical accessibility in terms of using the fundamental rights and freedoms of the disabled individuals played an important role. However, unfortunately, many judges and prosecutors working at the criminal and administrative judiciary do not have enough education and experience.

The law on the disabled people no. 5378 accepted on 1.7. 2005 could not be efficient in the solution of the problems regarding physical accessibility.

Then, the arrangement of the temporary article 2 of the law as follows created disappointment:

“all the available official buildings, available roads, sidewalks, pedestrian crossings, open and green zones, sports areas and similar social and cultural infrastructure areas belonging to the public institutions and organizations as well as all kinds of buildings serving the public built by the real and legal persons shall be made suitable for the accessibility of disabled within 7 years following the date when this Law enters into force”

In fact, in accordance with this article, the authorized people should have immediately started developing projects and activities determining solutions for the short, medium and long term.

Some practitioners acted perceiving this arrangement as ‘a period of 7 years is granted’.

Therefore, the sanction about the authorized/responsible people was not implemented and a legal obstacle was formed before the disabled people against them reaching their fundamental rights and freedoms. After the legal arrangements, when the simple solutions for the problems such as sidewalks and ramps were requested, the authorities stated that they would

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try to solve the problem in the shortest time. Yet, it was frequently seen that they reminded that seven years had been granted by law. The solution has been legally ignored by depending on this period and waiting until now. The related legal arrangement is one of the first reasons why the physical accessibility and transport problems could not be mostly solved.

At the end of the seven years, while the practitioners were worrying about the suits to be filed against them since they did not implement their duty, the proposal of two MPs extended this period for 1 more year, to 8 years in total. Again, “as a result of the inspection, in order for the relevant municipalities and public institutions and organizations as well as the owners of all kinds of buildings and open places openly serving the public and the owners of the public transport vehicles might be granted an additional time that should not exceed two years starting from the end of the period specified in the paragraph 1 to complete their deficiencies.” Therefore, the seven years period was extended to 1 + 2 years 50.

Finally, today51 there is a short time of one month until the end of the period specified in the law. However, it is a fact that does not require proof that there has been no progress in terms of physical accessibility and transport problems. It shows that the related personalities do not follow the law and are not sincere in terms of the solution although they make legal arrangements for the solution of the problem.

III. PROBLEMS ENCOUNTERED BY DISABLED EMPLOYEES IN THEIR WORKPLACES

Some individuals who could be considered lucky in terms of their employment have been observed to experience some problems in terms of their relations with the employer and the other personnel at their workplace. The disabled individuals who work at the public and private sector face some problems such as especially the incompatibility of the accessibility with the universal standard as well as the problems resulting from the employer and the other personnel due to their disability.

50 51

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The Aricle 34 dated to 4/7/2012 and no. 6353 changed the expression “seven years” into “eight years”.

This part of the report was authored in May 2015.

The law tries to solve the disabled individuals’ employment with the practice of quota. “The employers are obliged to employ 3% disabled workers in the private sector workplaces and the public places have to employ 4% disabled workers depending on their physical and psychological situation if they employ 50 or more employees.� 52There are centralized exams for the public workplaces, while the private sector tries to implement this application through the employment institution.

We frequently witness that the employers in the private sector limit the number of their workers to 49 since they are not willing for disabled employment. If the situation of the disabled individual is heavy, the employer thinks that this disabled individual might leave a demotivating impact on the other employees as well as the customers which would be reflected on the work performance and the business in a negative way and it is reflected to the disabled person. We encounter the employers who offer the disabled people not to come to work and stay at home, and they would make the insurance would not pay salary. Despite all this negativity, when the disabled come for interviews to their workplaces, they are exposed to discouraging behaviors and are assigned with the tasks which are not suitable for them in the workplace. The absence of a strict and effective inspection in terms of the employment of the disabled individuals leads to comfortable / irresponsible behavior of the employers on this issue.

Legally, the disabled individuals have to be employed in a position which is suitable for their disability, it is seen that most of the employers do not pay attention to this.

The disabled individuals who are placed through the Institution face negative behaviors in their interviews with the human resources. Many workplaces interview the disabled person just to fulfill the legal procedural condition, and do not target finding a suitable disabled worker in these interviews.

This negativity leaves an unfortunate impact on the disabled individuals psychologically and destroys their self-confidence and leads to a self perception as being useless.

52

Labour Law Article 30th

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When the lucky disabled individuals are placed in a job, this time since they heavily feel they are recruited due to the obligations of quota, we cannot see the positive social psychological reflections of employment. Then, although the person produces equal work, he is employed for a lower wage and is requested to consider his employment as a gift and he is expected to be thankful.

Especially in the private sector, along with all these problems, the employment of the disabled person is considered as a burden and some employers do not refrain from telling this opinion to the disabled person. Disabled person who does not have the power to struggle with such problems loses his enthusiasm and starts to isolate himself by withdrawing from the society. Another negativity that is frequently observed is the termination of the contract of the disabled based on some other grounds.

It is obviously seen that there is a community which is unaware of the contribution of the disabled individuals who actively participate in the work life to himself and to the society psychologically and sociologically.

We cannot say that the employment request in the private sector or public sector regarding the disabled is sincere. As a society, we clearly need a serious education about the disadvantageous groups and the needs of such groups.

The problems resulting from the system mostly manipulate the disabled people to become a part of this spoiled order. Disabled people who have to stay insured for a while to be pensioners get into some illegal agreement in order for the payment of his insurance premiums and getting the rights for becoming pensioners. Although they do not go to the work places and most of the time does not even get any wage, they allow appearing as if they are workers and thus, they pretend as if the employer fulfills their obligation of quota.

This situation forms an important obstacle before ensuring the real disabled employment and once again showed us the importance of effective inspection.

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CONCLUSION Our study is a general overview on the rules that exist in the legal system of the Republic of Turkey and regulate the right to work of the disabled. This report including our recommendations regarding the legislation and practice was prepared in order to contribute to the development process in the disabled law.

In terms of constitutional law, in the process of drafting a new constitution, we recommend that disability rights in particular is taken into consideration and that an independent and distinct article is drafted under the heading 'disability rights'. The term "disabled" should be treated as questionable in this equality provision, and additionally that a phrase of the following kind is added, "In order to ensure equality, the state is obligated to discriminate positively in favor of people with disabilities and is under an obligation to meet the recognized assurances of international law on this subject." If possible, it must also be outlined in an additional paragraph to this equality clause that "direct discrimination", "indirect discrimination", "resulting discrimination", "harassment", "lack of reasonable accommodation", "multiple basic discrimination". In addition to this, in terms of the right of the right to make individual applications before the Constitutional Court, it should be expressed that rights and freedoms within the scope of "the UN Disability Rights Convention" can be the subject of individual applications.

Additionally, the additional protocol allowing individual applications before the ECHR Additional Protocol No. 12 and Economic Committee of Social Rights must be approved as a priority urgently.

It is true that significant changes have been made to disability law in recent years.

Particularly, the replacement of the settled term 'crippled' with 'disabled', and the more prevalent use of the term 'disabled' has shown important positive developments in public perception of disability and their views of disabled individuals.

Regulations which strengthen the participation of the disabled in work life have been implemented with legal amendments made in accordance with the UN Disability Rights Convention and the EU aquis. In particular in 2014, the defining of disability based discrimination and, in this context, direct discrimination, indirect discrimination in legislation

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is a big step. Again, the term 'reasonable accommodation' located in the heart of disability law, was defined. Whilst on a legal level there are developments during the EU accession period which not only adhere to anti-discrimination laws but on some points goes even further, applications on disability based discrimination in work life remains to be seen.

In Turkish law, the main method in ensuring that disabled individuals take part in working life is the quota system. Deterrent administrative fines are imposed in this quota system which imposes obligations to employ disabled employees. However, such regulations are evaded with employers showing the employee as insured but paying them minimum wages.

As such, it is difficult to argue that the quota system in Turkey is an efficient vehicle in integrating the disabled community into social life.

The implementations of protected workplaces are bound to remain limited despite incentives provided by government regulations. Establishing protected workplaces, which are established at the discretion of employers, has been made more difficult with strict requirements. Indeed it is not possible to ensure that the employment of these individuals who belong to one disability group (mental and emotional disabilities) is included in social life. On the contrary, in protected workplaces these individuals can be isolated.

For these reasons, in the employment of the disabled, incentives by the government should be developed and, principally be beside disabled individuals with training and consultancy services. It is also necessary to develop mechanisms to prevent disability-based discrimination.

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JUDGMENTS AYM (1981) E. 1981/13, K. 1983/8, T. 28/4/1983 AYM (1986) E. 1986/11, K. 1986/26, T. 4/11/1986.

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EDITORS Assoc. Prof. N. Münci ÇAKMAK - Res. Assist. Canan ÜNAL – Advt. Pınar Şanel THE BACKGROUND OF THE AUTHORS AND EDITORS

Assoc. Prof. N. Münci ÇAKMAK He was born in Ankara on 04/19/1974. He completed his primary, secondary and high school education at TED Ankara College; and received his undergraduate degree from Ankara University Faculty of Law; his master's and doctorate degree from Ankara University Social Sciences Institute. He still continues to serve as a lecturer at Gazi University Faculty of Law in the Department of Administrative Law. He speaks fluent English, and intermediate Japanese.

Dr. Tolga ŞİRİN He was born in Izmir in 1984. He completed his undergraduate and graduate studies in Law at the Marmara University in 2012. He has been a guest researcher at the Birkbeck University and University of Cologne. He is a board member of the Constitutional Law Research Association and is a member of the working group at Turkish Bar Association Human Rights Centre. His interest areas include nationalism, ECHR, ecological constitutionalism and constitutional justice.

Res. Assist. Canan ÜNAL She was born in 1985 in Konya. She completed her undergraduate education at Bilkent University Faculty of Law in 2008; her graduate education at the Galatasaray University at private law program in 2011 and continues her doctorate degree at the Marmara University.

She has been working as a research assistant at Marmara University Faculty of Law Department of Business and Social Security Law since 2009. She has publications on topics such as the disabled, child laborers, the issue of the invalidity of employment contracts, psychological harassment in the workplaces, and the restructuring of care insurance. She speaks English and German.

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Advt. Figen ERBEK She was born in 1968 in Antakya and completed his primary-secondary and high school education in Antakya. She is a graduate of Marmara University Faculty of Law. She has been working as a member lawyer of the Istanbul Bar Association since 1993. She served at the prison commission in the Human Rights Center of Istanbul Bar Association between 1996 and 2002. She undertook the role of membership in the editorial board committee at the monthly magazine “Günışığı” between 2004 and 2008. She served as Istanbul Bar Association Internship Training Center Executive Board Member between 2010 and 2012.

She is a member of the Istanbul Bar Association Just Judgment Monitoring Center Executive Board Member. She has been voluntarily serving as a legal advisor in The Spinal Cord Paralytics Association of Turkey (TOFD) since 1999. She has been a member of the Legal Committee at TOFD since 2008. She took part in the professional training seminars in Istanbul Bar Association and training activities related to the Disability Rights at TOFD. Advt. Pınar ŞANEL (Editor) Şanel was born in London. She holds law degrees from the University of Oxford, and Dokuz Eylül University in Turkey. She is currently working in commercial law in London. She is also an editor at a commercial law review and is on the Legal Committee of The Spinal Cord Paralytics Association of Turkey.

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