Ayla (Şenses) Kara, Application No: 2013/7063, 5 November 2015

A) Facts

The applicant filed a complaint on insult against H.A., who was her superior while she was working in a private company. The 4th Criminal Court of Peace of Antalya imposed a punitive fine against H.A. The contract of employment of the applicant terminated due to that matter. On 27 August 2009, the 3rd Labour Court of Antalya ruled in favour of the instatement of the applicant. That decision was upheld by the Court of Appeal on 3 December 2010. However, instead of a reinstatement, only a compensation was paid to the applicant. The applicant brought an action on the basis that she was discharged on the basis of gender, while H.A. was privileged on the same basis. The 4th Labour Court of Antalya dismissed this action by stating that a reinstatement order had already been given and therefore there was no ground for compensation. This decision was finalized after being upheld by the Court of Appeal.

B) Judgment and Reasoning of the Court

As regards to the prohibition of discrimination, the Court stated that it can be examined whether an action was discriminatory regardless of an existence of violation against a substantive right. Accordingly, even if the relevant substantive right was not violated, the Court may rule that Article 10 of the Constitution is violated (§ 29).

According to the Court, gender resides in the scope of the corporeal and spiritual existence of a person. The discharge of a person on the basis of gender constitutes an interference to the right to privacy of private life (§§ 33-34, 38). While establishing the positive obligations of the State towards the principle of equality in conjunction with the right to personal inviolability, corporeal and spiritual existence, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) must be taken into account (§ 41). The Court stated that the burden of proof lies on the applicant for which she must prove that she had been treated differently without a legitimate aim. After this step, the burden shifts on the public authority to prove that there were no discriminate treatments or the difference in the treatment was based on a legitimate aim (§ 46). In the present case, the Court decided that the applicant had not provide any evidence suggesting that “the ground underlying the discharge of the applicant was based on a sexist approach” (§ 50). For his reason, the Court concluded that the alleged discrimination claim was inadmissible for being manifestly ill-founded (§ 51).

C) Significance of the Judgment

This judgement is the first of its kind given by the Constitutional Court on gender discrimination in business life. Yet, the Court has analysed the prohibition of discrimination in conjunction with the right to personal inviolability, corporeal and spiritual existence, rather than the freedom of labour and contract. It is also significant for the Court to emphasize the CEDAW in relation to the positive obligations of the State.

It should be noted that, the Court has added a new criterion to the burden of proof of the applicant by pointing out to the failure of the applicant to provide evidence suggesting that “the ground underlying the discharge of the applicant was based on a sexist approach”. Whereas there is an international tendency to reject the burden of proving the aim or motivation of the other side in legal proceedings, the Constitutional Court has presented an opposite approach in this judgement.