The Constitutional Court (AYM) Decision no. 2023/115 K. dated 19/9/2023 decided to annul the change of the phrase "...four years..." in the Article 47 of the Law No. 7417 on Amendments to the Law on Civil Servants Some Other Laws and Statutory Decree no. 375 dated 1/7/2022, and in the third sentence of the sixth paragraph of the provisional article 3 of the Law No. 5378 on Disabled Persons dated 1/7/2005 to "...eight years..." on the grounds that it is unconstitutional. In the decision of the Court, it was stated that "it is clear that the continuous extension of the period stipulated in the aforementioned articles of the Law to make all kinds of buildings operating open to the public, open spaces and public transportation vehicles accessible to disabled people will negatively affect disabled persons' potential to take part in society, participate in the workforce, and live individually. (…) Continuous extension of the period envisaged for making the areas and public transportation vehicles in question accessible to disabled persons will render the control mechanism foreseen in the Law dysfunctional and also eliminate the possibility of imposing administrative sanctions on those who do not comply with the obligations stipulated by the Law. The continuation of the extension of period will lead to those who are obliged to make the areas and public transportation vehicles in question accessible to disabled persons not to be willing to fulfill their obligations."

Accessibility, which can be regarded as one of the important tools of a society respecting human rights and is one of the important elements of the sustainable development agenda, was made into a positive obligation to States Parties with the provision of "To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas" in the first paragraph of Article 9 of United Nations Convention on the Rights of Persons with Disabilities (CRPD). In the subparagraph (d) of Article 4 titled "General Principles" of Law no. 5378 dated 7/7/2005, the necessity of accessibility in order for disabled persons to live independently and to participate in the society was emphasized and in the Article 3 of the Law titled "Definitions," it was stipulated that accessibility means "Buildings, open spaces, transportation and information services and information and communication technology can be used and accessed safely and independently by disabled persons."

In the General comment no. 2 on accessibility of Committee on Rights of Persons with Disabilities, which is the overseeing body of CRPD, with the comment of "Since accessibility is a precondition for persons with disabilities to live independently, as provided for in article 19 of the Convention, and to participate fully and equally in society, denial of access to the physical environment, transportation, information and communication technologies, and facilities and services open to the public should be viewed in the context of discrimination," physical environment, transportation, information and communication technologies, and facilities and services open to the public not being accessable is viewed in the context of prohibition of discrimination on the grounds of disability. Committee emphasizes that the right to accessibility is unconditional and explains that the institution or the organization obliged to provide accessibility may not excuse the omission to do so by referring to the economical or any other type of burden of providing access for persons with disabilities. (UN, CRPD, General comment no. 2 on Accessibility, (CRPD/C/GC/2), para. 23-25).

In the provisional Articles 2 and 3 of the Law no. 5378, making all kinds of buildings and open areas providing public services and public transportation vehicles accessible to disabled persons was made mandatory but a transition process was envisaged for making these places suitable for accessibility of disabled persons. Although Law no. 5378 entered into force on 7/7/2005 and in the first version of the Law, 2013 was envisaged to fulfil this mandate, it was stipulated that in order to fulfil the obligations put forth in the first version of the third sentence of the sixth paragraph of the provisional Article 3 created with the Article 34 of the Law no. 6353, an extention period no longer than two years can be granted. With the Article 7 of Law no. 7252, this period was amended as "three years" and with the Article 15 of Law no. 7333, this period was respecified as "four years." Finally, the phrase "...four years..." was changed to "...eight years," and this way, the periods envisaged for the transition period in both the Provisional Article 2 and the Provisional Article 3 have been continuously extended with legislative regulations.

In addition, the period envisaged for ensuring accessibility being continuously extended became a topic of criticism, starting with CRPD's 2019 Final Observation Report on Türkiye and the European Commission's 2021 and 2022 Türkiye Report. Moreover, the issue of the period envisaged for disabled persons being continuously extended was addressed in the human rights consultation meetings held in the provinces within the framework of its legal duty and the criticisms of accessibility not being at a sufficient level in many areas have been expressed. As a matter of fact, the regulations on monitoring and inspecting accessibility being continuously postponed has caused the accessibility for disabled persons not be realized. Therefore, Accessibility Monitoring and Inspection Commissions established within the framework of Law no. 5378 in order to monitor and inspect accessibility could not function effectively. In order to fill this gap, in the National Action Plan on the Rights of Persons with Disabilities, it is aimed to strengthen the monitoring and inspection of accessibility by financially strengthening the Monitoring and Inspection Commissions, effectively implementing administrative fines as a result of inspections (2023-2025National Action Plan on the Rights of Persons with Disabilities, p. 38).

In the Article 3 of Law no. 6701 on Human Rights and Equality Institution of Türkiye, "disability" is also put forth as one of the grounds of discrimination. Within this framework, Our Institution was meticulous in ensuring accessibility in its works. In the 2021 Combating Discrimination and Equality Report, it was stated that all buildings, structures, vehicles and services should immediately be made accessible to disabled persons within the framework of the Law No. 5378 on Persons with Disabilities, and taking the deterrent role of administrative sanctions into account, it was recommended that buildings, areas, and vehicles which do not meet the accessibility criteria should be effectively inspected by the relevant commissions and  the necessary sanctions be imposed (Human Rights and Equality Institution of Türkiye, 2021 Combating Discrimination and Equality Report, 2023, Ankara, p. 119).

Our Institution also brought the relevant issue into attention by the decisions of violation of prohibition of discrimination on the basis of disability due to lack of accessibility. With Decision No. 2022/927, Our Institution stated that with the amendment made with the Article 48 of Law No. 7417 on Amendments to the Law on Civil Servants Some Other Laws and Statutory Decree no. 375, it was decided that the period be extended to be no longer than eight years as of 7/7/2018 and although the period in question was decided to be extended, in CRPD's Final Observation Report on Türkiye dated 2019, the concern caused by non-compliance with the time limits regarding accessibility was expressed, and emphasized that accessibility is a concern regarding groups unlike reasonable accommodation, therefore ensuring accessibility is an obligation to be foreseen before implementation and its emergence. (HREIT, B. No: 2022/525, K. No: 2022/927, 22/2/2023).

Again, with Decision no. 2023/350, it has been decided that the failure of the addressee Institution to put forward adaptable, concrete proposals adhering to the timetable and to establish an effective monitoring mechanism in order to realize the accessibility of literary and artistic works violates the prohibition of discrimination on the grounds of disability. No: 2022/690, K. No: 2023/350, 8/5/2023).

Moreover, with Decision no. 2023/582, noting that ensuring accessibility does nor incur a great economical burden, it was decided that the exam notification regarding EKPSS not being presented in a way that is accessible to every person with disability puts persons with disabilities in a position in exercising their right to information which cannot be objectively justified, the addressee Institution did not put in the necessary effort; hence, the prohibition of discrimination on the grounds of disability was violated. No: 2023/63, K. No: 2023/582, 13/2023).

Our Institution, main mission of which is to protect and promote human rights, prevent discrimination and raise awareness on this issue, considers that the annulment decision given by the Constitutional Court is very important and appropriate in the realization of accessibility, which is a prerequisite for the full and equal participation of persons with disabilities in social life and independent living.

Respectfully announced to the public.