Communicated on 18 September 2017
SECOND SECTION
Application no. 49373/17
Onurhan SOLMAZ
against Turkey
lodged on 28 June 2017
SUBJECT MATTER OF THE CASE
The applicant is a trans person registered as male, but identifying herself as female. Respecting her self-identification, the Court will refer to her gender as female.
The application mainly concerns the alleged breaches of the applicant’s rights under Articles 8 and 14 of the Convention.
On 19 October 2012 the applicant was taken out of a bar allegedly on account of her appearance and gender identity. Subsequently, she lodged a criminal complaint against the owner of the bar. At the end of the criminal proceedings brought against the owner with the charge of discrimination in provision of services, on 5 December 2013 the Izmir Magistrates’ Court acquitted the accused.
The Magistrates’ Court held that the applicant had been taken out of the bar because of her physical appearance and because she had disturbed the other customers but that it had not been proven that the accused’s act had been based on discriminatory motives. On 10 March 2016 the Court of Cassation upheld the judgment of 5 December 2013.
On 3 April 2017 the Constitutional Court dismissed the applicant’s individual application. The Constitutional Court held, inter alia, that the applicant had failed to substantiate that there had been an unjustified interference with her private life. It considered further that the applicant had also failed to bring sufficient evidence showing a breach of the prohibition of discrimination.
The applicant complains of a violation of her rights under Articles 6, 8, 10 and 14 of the Convention.
QUESTIONS tO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention? In particular, did the respondent State fulfill its positive obligation, if any, arising out of Article 8 of the Convention (see, mutatis mutandis, R.B. v. Hungary, no. 64602/12, §§ 78-91, 12 April 2016)?
2. Did the applicant suffer discrimination in the enjoyment of her Convention rights on the ground of her gender identity, contrary to Article 14 of the Convention, in conjunction with Article 8 of the Convention? In particular, did the State authorities adequately examine whether there had been any possible discriminatory motives behind the treatment to which the applicant had been subjected (see, mutatis mutandis, M.C. and A.C. v. Romania, no. 12060/12, § 105, 12 April 2016)?
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