Individual Application

The Facts

The applicant is an only child and a single individual whose mother and father passed away. She is the owner of a house located in the centre of the Hasankeyf District.

The Ilısu Dam and the Project of Hydroelectric Power Plant, the construction of which was started by the General Directorate of State Hydraulic Works, significantly affected the centre of the Hasankeyf District; and therefore, a number of projects and activities were carried out to move the said part of the district to a new settlement area in Hasankeyf. The Council of Ministers was legally authorised to provide certain opportunities to those affected by the said construction project in terms of movement to the new settlement area.

The Council of Ministers, exercising this authority in accordance with the decision dated 20 April 2015, issued “Procedures and Principles” regarding entitlement to the support to be provided.

The applicant made an application for entitlement to the housing support. However, her request was rejected by the Investigation Commission and the Local Housing Commission, on the ground that she did not meet the condition of being a family as stipulated in Article 17 of Law No. 5543.

The action brought by the applicant, challenging the said administrative act, was dismissed by the administrative court. The applicant’s subsequent appeal was dismissed on the merits by the regional court of appeal.

The Applicant’s Allegations

The applicant claimed that the prohibition of discrimination in conjunction with the right to property had been violated due to the dismissal of her request for housing support afforded to those affected by the dam project, for her not being regarded as a family.

The Court’s Assessment

The Court has previously acknowledged that the grounds for discrimination enumerated in Article 10 of the Constitution are not limited to the inherited or acquired personal grounds such as sex, race, religion and etc. Accordingly, the concept of similar grounds specified in the relevant article has a broad interpretation, and it should be noted that the words “everyone” and “similar grounds” should not be interpreted in a way referring to a limited approach adopted with regard to persons protected against discrimination and to the grounds of discrimination.

The legislator has granted such a right to the family, not to the individual herself/himself. Pursuant to Article 17 of Law no. 5543, while those who have lost their family but are married, widowed, or not an only child (have siblings) shall be considered as family, the ones who are only child and have never married shall be excluded from the scope of the concept of being a family. In that case, the entitlement to housing support is determined accordingly; that is to say, those who have no siblings and are not married are deprived of such support for not being regarded as a family. Accordingly, it is clear that there is a difference in treatment among those who have lost their parents, on the basis of whether they are only child and whether they were or are married, in terms of their entitlement to housing support.

The discrimination in the present case originated from the definition of family as set forth in Article 17 of Law no. 5543. Neither the legislative documents related to the Law, nor the administration’s act and the inferior courts’ decisions contained any grounds as to the different treatment in question.

Article 17 § 1 (ç) of Law no. 5543 was amended by Article 36 of Law no. 7221. Accordingly, the amended provision included the phrase “… those who are single, have no siblings and have been left alone with the death of their parents …” which therefore enabled the single and alone individuals, like the applicant, to be regarded as a family and thus to be entitled to housing support. In this way, the difference in treatment has been eliminated. As stated in the legislative intent of the amendment made by Law no. 7221, “those who have lost their parents, who have no siblings, who have never married or whose siblings are married” shall be regarded as a family. Thus, it has also been accepted by the legislator that there is no objective and reasonable ground for the difference in treatment among those who have lost their parents on the basis of whether they are an only child and whether they are married or were married.

In this case, it has been concluded that the different treatment to which the applicant was subjected to in terms of entitlement to housing support provided by virtue of Provisional Article 8 § 3 of Law no. 5543 had no objective and justified basis.

Consequently, the Court has found a violation of the prohibition of discrimination in conjunction with the right to property.